United States District Court, E.D. North Carolina, Western Division
TERRENCE W. BOYLE CHIEF UNITED STATES DISTRICT JUDGE.
20, 2019, Sylvester Daniels ("petitioner"), a state
inmate, filed pro se a petition for a writ of habeas corpus
under 28 U.S.C. § 2254. Pet. [D.E. 1]. The court now
conducts its preliminary review under 28 U.S.C. § 2243
and Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts and, for the following reasons,
dismisses the petition as untimely.
presently is serving a sentence pursuant to his April 10,
2006, conviction for Statutory Rape in Pitt County Superior
Court. See N.C. Dep't Pub. Safety, Offender Pub. Info.
1 (last visited Nov. 21, 2019). Petitioner pleaded guilty and
did not directly appeal. See Pet. [D.E. 1] at 2-3. On
February 18, 2019, petitioner filed a motion for appropriate
relief ("MAR") in Pitt County Superior Court.
Id. at 3. This MAR was summarily denied on March 12,
2019. Id. On May 8, 2019, petitioner filed in the
North Carolina Court of Appeals a petition for a Writ of
Certiorari. Id. at 4. The petition was denied on May
10, 2019. Id. Petitioner then filed the instant
was convicted under North Carolina General Statute §
14-27.7A. Id. at 1. Petitioner argues that
this statute unconstitutionally 1) punishes older adults more
severely than younger adults, and 2) permits only some adults
to engage in sexual conduct with minors. Id. at 5-8.
Petitioner further contends that, pursuant to Class v.
United States, 138 S.Ct. 798 (2018)
("Class"). he now may challenge the
constitutionality of this statute despite his guilty plea.
Id. at 15.
court may sua sponte dismiss a section 2254 petition without
notice if "it is indisputably clear from the materials
presented to the district court that the petition is untimely
and cannot be salvaged by equitable tolling principles or any
of the circumstances enumerated in [section]
2244(d)(1)." Hill v. Braxton, 277 F.3d 701, 707
(4th Cir. 2002).
Antiterrorism and Effective Death Penalty Act
("AEDPA") requires an individual in custody
pursuant to the judgment of a state court to file any
application for a writ of habeas corpus 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
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.
28 U.S.C. § 2244(d)(1).
petitioner did not directly appeal to the North Carolina
Court of Appeals, his conviction became final on or about
April 24, 2006, when the fourteen-day time period to serve
notice of appeal expired. See 28 U.S.C. § 2244(d)(1)(A);
N.C. R. App. P. 4(a)(2) (providing that notice of appeal may
be filed within fourteen days of judgment); Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012) ("the judgment
becomes final at the 'expiration of the time for seeking
such review'-when the time for pursuing direct review in
this Court, or in state court, expires."). AEDPA's
one-year limitation period then ran uninterrupted for 365
days until it expired on or about April 24, 2007.
Petitioner's state post-conviction filings more than a
decade later did not reopen his time for filing a federal
habeas petition. See Minter v. Beck, 230 F.3d 663,
665 (4th Cir. 2000).
petitioner contends that, pursuant to the Supreme Court's
decision in Class, his petition is timely under
§ 2244(d)(1)(C), this claim also fails. The one-year
limitation period under section 2244(d)(1) is tolled during
the time in which "a properly filed application for
State post-conviction or other collateral review with respect
to the pertinent judgment or claim is pending." 28
U.S.C. § 2244(d)(2); see Taylor v. Lee, 186
F.3d 557, 560-61 (4th Cir. 1999). An application for
post-conviction or other collateral review is pending from
initial filing in state court until final disposition in the
highest state court. See Taylor, 186 F.3d at 560-61.
Once the state's highest court orders a final disposition
in the state postconviction proceedings, the prior