United States District Court, W.D. North Carolina, Statesville Division
D. WHITNEY CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court upon Petitioner Waverly
Orlando Harshaw, Jr.'s pro se Petition for Writ of Habeas
Corpus, 28 U.S.C. § 2254. (Doc. No. 1.)
is a prisoner of the State of North Carolina who was
convicted of first-degree murder by a Catawba County Superior
Court jury. State v. Harshaw, 532 S.E.2d 224, 225 (
N.C. Ct. App. 2000). He was sentenced to life in prison
without the possibility of parole. Id. Judgment was
entered on August 4, 1998. Id.
judgment was affirmed by the North Carolina Court of Appeals.
Id. at 228. Thereafter, Petitioner filed a petition
for discretionary review in the North Carolina Supreme Court,
which was denied on August 24, 2000. State v.
Harshaw, 544 S.E.2d 793 ( N.C. 2000) (Mem). Although he
indicates that he filed a petition for writ of certiorari in
the United States Supreme Court, it appears Petitioner was
referring to his petition for writ of certiorari in the North
Carolina Supreme Court. (§ 2254 Pet. 3, Doc. No. 1; Dec.
8, 2016 Order Dis. Cert. Pet., Doc. No. 1-1.)
filed a motion for appropriate relief (“MAR”) in
the Catawba County Superior Court on or about August 18,
2016. It was denied or dismissed, although Petitioner does
not indicate when that occurred. The North Carolina Supreme
Court entered an order on December 8, 2016, dismissing a
petition for writ of certiorari Petitioner filed on October
24, 2016, seeking review of the Catawba County Superior Court
order disposing of his MAR. (Dec. 8, 2016 Order Dis. Cert.
Pet., Doc. No. 1-1.)
filed the instant § 2254 Petition on November 15, 2017,
when he placed it in the prison mail system. See Houston
v. Lack, 487 U.S. 266, 267 (1988). He raises the
following grounds for relief: 1) ineffective assistance of
trial counsel related to a plea offer made prior to trial; 2)
prosecutorial misconduct related to the prosecutor's
closing argument to the jury; 3) underrepresentation of
African Americans in the jury pool; and 4) error by the trial
court in refusing to give a self-defense instruction to the
jury. (§ 2254 Pet. 7-12.)
Court notified Petitioner that the habeas Petition appeared
to be time-barred and, pursuant to Hill v. Braxton,
277 F.3d 701 (4th Cir. 2002), provided him an opportunity to
explain to the Court why the Petition should not be dismissed
as untimely. Petitioner filed a response, arguing his
ignorance of the law warranted equitable tolling of the
statute of limitations.
STATUTE OF LIMITATIONS
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). Generally,
the petition must be filed within one year of the date on
which the judgment became final by the conclusion of direct
review or the expiration of the time for seeking such review.
§ 2244(d)(1)(A). The limitations period is tolled during
the pendency of a properly filed state post-conviction
action. 28 U.S.C. § 2244(d)(2).
judgment became final on or about November 22, 2000, 90 days
after the North Carolina Supreme Court denied his petition
for discretionary review, when the time to file a petition
for writ of certiorari in the United States Supreme Court
expired. See Clay v. United States, 537 U.S. 522,
527 (2003); Sup. Ct. R. 13.1 (setting 90-day time limit for
filing a petition for writ of certiorari). The federal
statute of limitations then ran for 365 days until it full
expired on or about November 22, 2001, almost 16 years before
Petitioner filed the instant § 2254 Petition.
Accordingly, absent equitable tolling or application of
another AEDPA provision, the instant Petition is time-barred.
See § 2244(d)(1)(A).
tolling of the statute of limitations is available only when
the petitioner demonstrates “(1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented
timely filing.” Holland v. Florida, 560 U.S.
631, 649 (2010) (internal quotation marks omitted). Under
Fourth Circuit precedent, equitable tolling is appropriate in
those “rare instances where-due to circumstances
external to the party's own conduct-it would be
unconscionable to enforce the limitation period against the
party and gross injustice would result.” Rouse v.
Lee, 339 F.3d 238, 246 (4th Cir. 2003) (en banc)
(quoting Harris v. Hutchinson, 209 F.3d 325, 330
(4th Cir. 2000)) (internal quotation marks omitted).
asserts that lack of legal resources and his own ignorance of
the law justifies equitable tolling. “[E]ven in the
case of an unrepresented prisoner, ” however,
“ignorance of the law is not a basis for equitable
tolling.” United States v. Sosa, 364 F.3d 507,
512 (4th Cir. 2004) (citing Cross-Bey v. Gammon, 322
F.3d 1012, 1015 (8th Cir. 2003) (“[E]ven in the case of
an unrepresented prisoner alleging a lack of legal knowledge
or legal resources, equitable tolling has not been
warranted.”); United States v. Riggs, 314 F.3d
796, 799 (5th Cir. 2002) (“[A] petitioner's own
ignorance or mistake does not warrant equitable tolling . . .
.”); Delaney v. Matesanz, 264 F.3d 7, 15 (1st
Cir. 2001) (rejecting the argument that a pro se
prisoner's ignorance of the law warranted equitable
has not diligently pursued his rights in the state courts,
and he has not cited any circumstance that stood in the way
of timely filing his § 2254 Petition. As such,
Petitioner is not ...