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Duvall v. Hernandez

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

June 15, 2018

KENNETH KELLY DUVALL, Petitioner,
v.
CARLOS HERNANDEZ, Respondent.

          ORDER

          Frank D. Whitney Chief United States District Judge

         THIS MATTER is before the Court upon its own motion.

         Petitioner is a prisoner of the State of North Carolina, who, on April 17, 2017, filed a “Petition for Writ of Certiorari” (Doc. No. 1) and Motion for Leave to Proceed In Forma Pauperis (“IFP Motion”) (Doc. No. 2) in this Court. In this action, Petitioner is challenging the validity of his state court judgment(s). Accordingly, the “Petition for Writ of Certiorari” is properly classified as a petition for writ of habeas corpus brought under 28 U.S.C. § 2254.

         It does not appear that Petitioner has previously filed a § 2254 petition. Prior to recharacterizing a mislabeled post-conviction action as an initial § 2254 petition, a district court must provide the prisoner notice and an opportunity to respond. See United States v. Emmanuel, 288 F.3d 644, 649 (4th Cir. 2002), overruled in part on other grounds by Castro v. United States, 540 U.S. 375, 383 (2003), as recognized in United States v. Blackstock, 513 F.3d 128, 133 (4th Cir. 2008).

         NOTICE

         The Court hereby notifies Petitioner that it intends to construe the “Petition for Writ of Certiorari” as a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner must indicate whether he agrees or disagrees with this recharacterization.

         Before making this decision, Petitioner should consider that if the Court construes this Petition as one brought pursuant to §2254, it will be Petitioner's first §2254 petition. Thereafter, Petitioner may not file a second or successive §2254 petition attacking the same criminal judgments, unless he first receives permission to do so from the United States Court of Appeals for the Fourth Circuit. See 28 U.S.C. § 2244(b)(3)(A).

         Moreover, in determining whether he agrees or disagrees with this recharacterization, Petitioner should consider that the law imposes a one-year statute of limitations on the right to bring a habeas action pursuant to §2254. See 28 U.S.C. § 2244(d)(1). The statute of limitations begins to run at 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.

         If Petitioner agrees to have the Petition considered as one pursuant to §2254, he may indicate that intent by completing the standard §2254 form used by this Court, signing it under penalty of perjury, and returning it by the date set in this Order. The Rules Governing Section 2254 Cases in the United States District Court require that habeas petitions follow a certain format, Rule 2(d), 28 U.S.C. §2254 foll, and the instant “Petition for Writ of Certiorari” does not comply with that format. The Clerk of Court shall be directed to send Petitioner a blank standard §2254 ...


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