United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
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.)
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.
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).
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). 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.)
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.)
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. (§2254 Pet. 5-11.)
STANDARD OF REVIEW
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.
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