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Johnson v. Hooks

United States District Court, W.D. North Carolina, Charlotte Division

October 30, 2017

ROBERT JAMES JOHNSON, JR., Petitioner,
v.
ERIK A. HOOKS, [1]Respondent.

          ORDER

          FRANK D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.

         THIS MATTER is before the Court upon Petitioner Robert James Johnson, Jr.'s pro se Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. (Doc. No. 1).

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina who, on July 22, 2003, was convicted by a Mecklenburg County jury of two counts of first-degree murder, two counts of attempted robbery with a dangerous weapon, and one count of possession of a firearm by a felon. State v. Johnson, 615 S.E.2d 435, 2005 WL 1572135, at *2 ( N.C. Ct. App. 2005) (unpublished). The trial court consolidated the first-degree murder convictions into a single judgment and sentenced defendant to life imprisonment without parole. Id. The court entered consecutive sentences of 120 to 153 months each for the remaining crimes. Id. Judgment was entered on July 24, 2003. Id. at *1.

         Judgment was affirmed by the North Carolina Court of Appeals in an unpublished opinion issued on July 5, 2005. Id. at *6. Petitioner's petition for discretionary review of the Court of Appeals' opinion was denied by the North Carolina Supreme Court on October 6, 2005. State v. Johnson, 622 S.E.2d 501 ( N.C. 2005) (Mem). According to Petitioner, he did not seek certiorari review in the United States Supreme Court. (§ 2254 Pet. 2, Doc. No. 1.)

         Petitioner also has not sought collateral post-conviction relief by way of a motion for appropriate relief in the state courts, see N.C. Gen. Stat. §§ 15A-1411-1422. (§ 2254 Pet. 3, 5.) He filed the instant habeas Petition on September 27, 2017, when he placed it in the prison mailing system. See Houston v. Lack, 487 U.S. 266, 267 (1988). Petitioner raises one ground for relief: that he has been denied equal protection and due process by the state's failure to keep an historical record of his trial in accordance with N.C. Gen. Stat. § 7A-109. (§ 2254 Pet. 5.)

         II. STANDARD OF REVIEW

         The Court is guided by Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, which directs district courts to dismiss habeas petitions when it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief. Rule 4, 28 U.S.C.A. foll. § 2254. In conducting its review under Rule 4, the court “has the power to raise affirmative defenses sua sponte, ” including a statute of limitations defense under 28 U.S.C. § 2244(d). Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002). The court may dismiss a petition as untimely under Rule 4, however, only if it is clear that the petition is untimely, and the petitioner had notice of the statute of limitations and addressed the issue. Id. at 706-707.

         III. DISCUSSION

         A. Statute of Limitations

         The Antiterrorism and Effective Death Penalty Act of 1996 provides a statute of limitations for § 2254 petitions by a person in custody pursuant to a state court judgment. 28 U.S.C. § 2244(d)(1). The petition must be filed within one year of the latest of:

(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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