DuVall v. Hernandez

Filing 4

ORDER: Petitioner shall have 21 days to inform the Court whether he agrees to the recharacterization of his Petition for Writ of Certiorari as a 28 U.S.C. § 2254 petition for writ of habeas corpus. Petitioner shall have 21 days to file an amended IFP motion as well as the appropriate document showing the balance in his inmate trust account. Signed by Chief Judge Frank D. Whitney on 6/14/2018. (Pro se litigant served by US Mail.) (maf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:18-cv-00108-FDW
KENNETH KELLY DUVALL,

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Petitioner,
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vs.
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CARLOS HERNANDEZ,
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Respondent.
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____________________________________)

ORDER

THIS MATTER is before the Court upon its own motion.
Petitioner 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.
It does 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
Cir. 2008).
NOTICE
The 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.
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Before 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).
Moreover, 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.
Id.
If 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 form for him to complete. Petitioner need not refile his exhibits; those remain in the
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record, and the Court will consider them in its review of the habeas petition.
If Petitioner does not agree to have the Petition construed as one under §2254, he need
only file a paper writing stating that he does not agree to have it recharacterized as such, and the
Court will dismiss this action without prejudice. If Petitioner fails to timely respond to this
Order, the Court will recharacterize the Petition as one brought pursuant to §2254.
Additionally, federal law requires that a prisoner seeking habeas review of his state
conviction and/or sentence in federal district court pay a $5.00 filing fee or be granted leave by
the court to proceed without prepayment of fees and costs. 28 U.S.C. §§ 1914, 1915. Petitioner
has filed his IFP Motion on forms used by the North Carolina appellate courts. (Doc. No. 2.)
The rules regarding prisoner IFP motions differ in the federal courts. Therefore, the Clerk of
Court shall be directed to send Petitioner a blank standard form for use by prisoners seeking IFP
status in the federal courts.
NOTE: For those seeking indigent status, Rule 3(2) of the Rules Governing Section
2254 Cases requires that a state prisoner’s IFP motion be accompanied by “a certificate from the
warden or other appropriate officer of the place of confinement showing the amount of money
or securities that the petitioner has in any account in the institution.” Petitioner’s failure to
include such a certificate or a receipt displaying the balance of his inmate trust account, could
result in denial of IFP status.
IT IS, THEREFORE, ORDERED that:
1. Petitioner shall have 21 days from entrance of this Order to inform the Court, by
one of the methods prescribed herein, whether he agrees to the recharacterization
of his Petition for Writ of Certiorari as a 28 U.S.C. § 2254 petition for writ of
habeas corpus;

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2. Petitioner shall have 21 days from entrance of this Order to file an amended IFP
motion on the form approved for such use in this Court, as well as the appropriate
document showing the balance in his inmate trust account; and
3. The Clerk of Court shall mail Petitioner a blank 28 U.S.C. § 2254 form and a
blank IFP application approved for use in this Court by prisoners seeking indigent
status.
SO ORDERED.
Signed: June 14, 2018

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