United States District Court, W.D. North Carolina, Asheville Division
D. Whitney, Chief United States District Judge.
MATTER is before the Court upon Petitioner Kenneth
Kelly Duvall's pro se Petition for Writ of Habeas Corpus,
pursuant to 28 U.S.C. § 2254. (Doc. No. 5.) Also before
the Court are Petitioner's Amended Motion for Leave to
Proceed In Forma Pauperis (“IFP”) (Doc. No. 6)
and Motion requesting the Court to include his previously
filed Petition for Writ of Certiorari (Doc. No. 1) as
evidence and argument in support of his § 2254 Petition
(Doc. No. 9).
reviewing the Amended IFP Motion and a printed summary of
Petitioner's trust account balance (Doc. No. 7), the
Court is satisfied Petitioner did not have sufficient funds
to pay the filing fee when he filed his habeas Petition.
Therefore, the Court shall grant the Amended IFP Motion.
is a prisoner of the State of North Carolina, who pled guilty
on March 28, 2012, in Burke County Superior Court, to one
count of first-degree statutory rape, N.C. Gen. Stat. §
14-72.2(a)(1), one count of first-degree stat. sex offense,
N.C. Gen. Stat. § 14-72.4(a)(1), and one count of
first-degree statutory rape, N.C. Gen. Stat. §
14-72.7A(a). (§ 2254 Pet. 1, Doc. No. 5; J and Comm.
Form, App'x D, Ex. 1, Doc. No. 1-1 at 35.) He was
sentenced to 288-355 months in prison. (§ 2254 Pet. 1.)
He did not file a direct appeal. (§ 2254 Pet. 2.)
September 20, 2017, Petitioner filed a motion for appropriate
relief (“MAR”) in the Burke County Superior
Court, which was denied on September 22, 2017. (§ 2254
Pet. 3.) In December 2017, he filed a state petition for writ
of habeas corpus in the Burke County Superior Court, which
was denied the same month. (§ 2254 Pet. 4-5.) On
February15, 2018, Petitioner filed a petition for writ of
certiorari in the North Carolina Court of Appeals, seeking
review of the trial court's denial of his MAR; it was
denied on February 19, 2018. (§ 2254 Pet. 4.)
April 17, 2018, Petitioner filed a document in this Court
titled “Petition for Writ of Certiorari, ”
challenging the validity of his state court judgment. (Doc.
No. 1.) Because it did not appear he previously had filed a
§ 2254 petition, the Court issued Petitioner notice of
its intent to characterize the “Petition for Writ of
Certiorari” as a petition for writ of habeas corpus
under 28 U.S.C. § 2254, and provided him an opportunity
to indicate whether he agreed to the Court's
recharacterization. (Doc. No. 4 (citing 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
to the Court's instructions, Petitioner indicated his
agreement by filing the instant habeas Petition on the form
proscribed for use in this district. (Doc. No. 5.) He claims
the trial court did not have subject matter jurisdiction to
enter judgment against him and that he was convicted under an
unconstitutional statute that has since been abolished.
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 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 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