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Harshaw v. Hooks

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

November 29, 2017

WAVERLY ORLANDO HARSHAW, JR., Petitioner,
v.
ERIK A. HOOKS, [1] Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court upon initial review of Petitioner Waverly Orlando Harshaw, Jr.'s pro se Petition for Writ of Habeas Corpus, 28 U.S.C. § 2254. (Doc. No. 1.) Also before the Court is Petitioner's Motion to Appoint Counsel and Motion for Evidentiary Hearing. (Doc. No. 2.)

         I. PROCEDURAL HISTORY

         Petitioner is a prisoner of the State of North Carolina who was convicted of first-degree murder by a Catawba County Superior Court jury. State v. Harshaw, 532 S.E.2d 224, 225 ( N.C. Ct. App. 2000). He was sentenced to life in prison without the possibility of parole. Id. Judgment was entered on August 4, 1998. Id.

         Petitioner's judgment was affirmed by the North Carolina Court of Appeals. Id. at 228. Thereafter, Petitioner filed a petition for discretionary review in the North Carolina Supreme Court, which was denied on August 24, 2000. State v. Harshaw, 544 S.E.2d 793 ( N.C. 2000) (Mem). Although he indicates that he filed a petition for writ of certiorari in the United States Supreme Court, it appears Petitioner was referring to his petition for writ of certiorari in the North Carolina Supreme Court. (§ 2254 Pet. 3, Doc. No. 1; Dec. 8, 2016 Order Dis. Cert. Pet., Doc. No. 1-1.)

         Petitioner filed a motion for appropriate relief (“MAR”) in the Catawba County Superior Court on or about August 18, 2016. It was denied or dismissed, although Petitioner does not indicate when that occurred. The North Carolina Supreme Court entered an order on December 8, 2016, dismissing a petition for writ of certiorari Petitioner filed on October 24, 2016, seeking review of the Catawba County Superior Court order disposing of his MAR. (Dec. 8, 2016 Order Dis. Cert. Pet., Doc. No. 1-1.)

         Petitioner filed the instant § 2254 Petition on November 15, 2017, when he placed it in the prison mail system. See Houston v. Lack, 487 U.S. 266, 267 (1988). He raises the following grounds for relief: 1) ineffective assistance of trial counsel related to a plea offer made prior to trial; 2) prosecutorial misconduct related to the prosecutor's closing argument to the jury; 3) underrepresentation of African Americans in the jury pool; and 4) error by the trial court in refusing to give a self-defense instruction to the jury. (§ 2254 Pet. 7-12.)

         II. STATUTE OF LIMITATIONS

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 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 retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Id. The limitations period is tolled during the pendency of a properly filed state post-conviction action. 28 ...


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