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Duvall v. Hernandez

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

April 1, 2019

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

          ORDER

          Frank D. Whitney, Chief United States District Judge.

         THIS 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).

         After 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.

         I. BACKGROUND

         Petitioner 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.)

         On 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.)

         On 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 Cir. 2008)).).

         Pursuant 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.

         II. STANDARD OF REVIEW

         The 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.

         III. DISCUSSION

         The 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 ...

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