United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District Judge.
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.
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.
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.)
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.)
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.)
STATUTE OF LIMITATIONS
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