United States District Court, W.D. North Carolina, Asheville Division
D. Whitney Chief United States District Judge
MATTER is before the Court upon its own motion.
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.
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
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.
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).
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.
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 ...