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Zinkand v. Hernandez

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

January 23, 2018

JOHN JOSEPH ZINKAND, Petitioner,
v.
CARLOS HERNANDEZ, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court upon initial review of John Joseph Zinkand's pro se Petition for Writ of Habeas Corpus, 28 U.S.C. § 2254. (Doc. No. 4.)

         I. BACKGROUND

         Petitioner is a prisoner of the State of North Carolina, who was convicted by a Macon County jury of three counts of statutory sex offense, two counts of crime against nature, and one count of taking indecent liberties with a child. State v. Zinkand, 661 S.E.2d 290, 291 ( N.C. Ct. App. 2008). Defendant was sentenced to several consecutive active terms of imprisonment followed by an additional probationary sentence to begin at the expiration of the active sentences. Id. at 293. Judgment was entered on November 17, 2006. Id. at 290.

         On direct appeal, the North Carolina Court of Appeals affirmed Petitioner's convictions and sentences but vacated the trial court's ruling which classified Petitioner as a sexually violent predator and remanded the matter to the trial court for the entry of an order removing that classification. Id. at 294. Petitioner's petition for discretionary review was denied by the North Carolina Supreme Court on October 9, 2008. State v. Zinkand, 668 S.E.2d 783 ( N.C. 2008) (Mem).

         Petitioner filed a motion for appropriate relief in the Macon County Superior Court on or about May 5, 2011. See State's Resp. to Pet. for Writ of Cert. ¶ 4, State v. Zinkand, No. P12-869 ( N.C. Ct. App. filed Oct. 30, 2012).[1] The MAR was denied on August 18, 2011. See id. On or about October 15, 2012, Petitioner filed a petition for writ of certiorari, seeking review of the trial court's denial of his MAR. See Docket Sheet, id. at Doc. No. 1. His petition was denied by the North Carolina Court of Appeals on November 1, 2012. See id. Thereafter, according to Petitioner, he filed a petition for writ of habeas corpus in the North Carolina Supreme Court on May 19, 2017, which was denied on July 7, 2017. (§ 2254 Pet. 4-5.)

         On October 5, 2017, see Houston v. Lack, 487 U.S. 266, 267 (1988), Petitioner filed a document titled “Petition for Writ of Certiorari” in this Court. (Doc. No. 1.) Because he was challenging the validity of his state court judgments and had never before filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, the Court issued Petitioner notice of its intent to construe the Petition for Writ of Certiorari as a § 2254 petition for writ of habeas corpus, see Castro v. United States, 540 U.S. 375, 383 (2003). (Doc. No. 3.) The Castro Notice instructed that Petitioner could indicate his acceptance of the conversion by completing the standard §2254 form used by this Court, signing it under penalty of perjury, and returning it by a set date. (Castro Notice 3, Doc. No. 3.) This step was necessary because the Petition for Writ of Certiorari (Doc. No. 1) did not comply with Rule 2(d) of the Rules Governing Section 2254 Cases in the United States District Courts. (Castro Notice 3.)

         On October 31, 2017, Petitioner filed a completed §2254 standard form, which he signed under penalty of perjury. Accordingly, the Court shall dismiss the Petition for Writ of Certiorari, but consider the instant §2254 Petition as having been filed on October 5, 2017, the date on which Petitioner initiated this action. Petitioner raises the following grounds for relief: 1) the statute under which he was convicted has been determined to be unconstitutional; 2) the indictments used to convict him were invalid; and 3) the State and the North Carolina Courts violated his due process right to challenge his convictions by refusing to respond to the claims raised in post-conviction.[2] (§2254 Pet. 5-11.)

         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

         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 ...

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