United States District Court, W.D. North Carolina, Charlotte Division
MATTER is before the Court upon Petitioner Kevin
Cellent's pro se Petition for Writ of Habeas Corpus
pursuant to 28 U.S.C. § 2254. (Doc. No. 1).
is a prisoner of the State of North Carolina who, on April
12, 2013, was convicted by a Mecklenburg County jury of
first-degree rape. State v. Cellent, 765 S.E.2d 556,
2014 WL 4557508, at *1, *3 ( N.C. Ct. App. Sept. 16, 2014)
(unpublished). Defendant was sentenced to 220-273 months
imprisonment and ordered to register as a sex offender and
enroll in satellite-based monitoring. Id. at *3. On
direct review, the North Carolina Court of Appeals held that
Petitioner received a trial free from prejudicial error.
Id. at *8.
filed the instant habeas Petition on November 28, 2016.
(§ 2254 Pet. 12, Doc. No. 1.) Based upon the information
provided in the Petition, the Court notified Petitioner that
his § 2254 Petition appeared to be time-barred and
provided him an opportunity to explain why the Petition
should not be dismissed as untimely, see Hill v.
Braxton, 277 F.3d 701, 706 (4th Cir. 2002).
(Hill Notice, Doc. Nos. 2, 4.) Petitioner responded
and provided information about state post-conviction
proceedings that he had failed to include in his § 2254
Petition. (Doc. No. 5.) While the additional information
alters the Court's understanding of the timeline in this
action, it does not alter the Court's conclusion that the
habeas Petition is barred by the statute of limitations.
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
(“AEDPA”) provides a statute of limitation 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 date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such
review.” § 2244(d)(1)(A). The limitation period is
tolled during the pendency of a properly filed state
post-conviction action. 28 U.S.C. § 2244(d)(2).
was entered in this case on April 12, 2013, when Petitioner
was sentenced. The North Carolina Court of Appeals issued its
Order denying Petitioner's direct appeal on September 16,
2014. Petitioner then had thirty-five (35) to seek
discretionary review in the North Carolina Supreme Court.
See N.C. R. App. P. 15(b) (“A petition for
review following determination by the Court of Appeals shall
be . . . filed and served within fifteen days after the
mandate of the Court of Appeals has been issued to the trial
tribunal.”); N.C. R. App. P. 32(b) (“Unless a
court orders otherwise, its clerk shall enter judgment and
issue the mandate of the court twenty days after the written
opinion of the court has been filed with the clerk.”).
Petitioner did not seek discretionary review during that
thirty-five-day time frame. (§ 2254 Pet. 4.) Therefore,
his conviction became final on or about October 21, 2014,
when the time for seeking direct review expired. See
§ 2244(d)(1)(A); Gonzalez v. Thaler, 132 S .Ct.
641, 656 (2012) (“We hold that, for a state prisoner
who does not seek review in a State's highest court, the
judgment becomes ‘final' on the date that the time
for seeking such review expires.”).
statute of limitations then ran until August 26, 2015 (309
days), when Petitioner filed a motion for appropriate relief
(“MAR”) in the trial court. See
§ 2244(d)(2). The statute of limitations was paused
until April 18, 2016, when the North Carolina Court of
Appeals denied Petitioner's petition for writ of
certiorari seeking review of the trial court's denial of
his MAR (NCPLS Letter, Doc. No. 5 at 3-4). The limitations
period resumed and ran for another 56 days, expiring on June
13, 2016, more than five months before Petitioner filed the
instant habeas Petition. Therefore, absent equitable tolling,
Petitioner's § 2254 Petition is untimely and must be
dismissed. See § 2244(d)(1)(A).
tolling of a habeas petition is available only when the
petitioner demonstrates “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary
circumstance stood in his way and prevented timely
filing.” Holland v. Florida, 560 U.S. 631, 649
(2010) (internal quotation marks omitted). Under Fourth
Circuit precedent, equitable tolling is appropriate in those
“rare instances where-due to circumstances external to
the party's own conduct-it would be unconscionable to
enforce the limitation period against the party and gross
injustice would result.” Rouse v. Lee, 339
F.3d 238, 246 (4th Cir. 2003) (en banc) (quoting Harris
v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000))
(internal quotation marks omitted).
offers various explanations for why equitable tolling should
apply in his case. In a letter attached to his habeas
Petition, Petitioner states that he filed a writ of habeas
corpus on time, but it was lost in the prison mail system.
(Pet'r's Letter to Clerk 1, Doc. No. 1. He also
states that he sent a $5.00 money order for the filing fee,
that it was returned to him by the Clerk of Court because
there was no open case to which to apply it, and that a copy
of the returned money order is attached to the instant habeas
Petition. (Pet'r's Letter to Clerk.) As the Court
noted in its Hill Notice, however, a copy of the
returned money order is not attached to the instant Petition.
(Hill Notice 3, Doc. No. 2.)
body of the habeas Petition, Petitioner appears to switch
gears and asks the Court to consider the
“nonchalantness of the prison administration and its
personnel to understand the importants [sic] of timeliness in
pro se legal issues.” (§ 2254 Pet. 11.) He then
asserts that he was “hindered . . . by the mishandling
of filing fee to the clerk in filing district.” (§
2254 Pet. 11.) These assertions appear to contradict
Petitioner's previous contention that the returned money
order is evidence that he placed his original habeas petition
in the prison mail system on or before the day it was due in
Response to the Court's Hill Notice, Petitioner
states that he “wanted to hold that money order as
proof that [the] petition was filed but the facility [where
he was housed at the time - Marion Correctional Institution]
would not let [him] keep it in [his] possession.”
(Pet'r's Resp. 1, Doc. No. 5.) According to
Petitioner, that is why a copy of the money order is not
attached to the instant habeas Petition. (Pet'r's
Resp. 1.) He suggests the Court check its internal records to
verify that he sent the filing fee in June 2016. He also
asserts that he re-filed his habeas petition when the Clerk
sent the money order back. (Pet'r's Resp. 2.)
carries the burden of showing that he is entitled to
equitable tolling. Harris, 209 F.3d at 330. Although
he has the burden of proof, Petitioner has provided no
evidence to support his assertions that he timely filed a
federal habeas petition and that it was lost in the prison
mail system. A prisoner's habeas petition is considered
filed on the date on which the prisoner swears under penalty
of perjury that he placed it in the prison mail system.
Houston v. Lack, 487 U.S. 266, 267 (1988).
Petitioner has not submitted any evidence that he placed a
federal habeas petition in the prison mail system at Marion