Carter v. Cooper
Filing
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ORDER DISMISSING CASE as untimely. Court declines to issue a Certificate of Appealability. Signed by Chief Judge Frank D. Whitney on 6/6/17. (Pro se litigant served by US Mail.)(clc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16cv537-FDW
MARCUS A. CARTER,
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)
Petitioner,
)
)
vs.
)
)
FRANK L. PERRY,
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Respondent.
)
____________________________________)
ORDER
THIS MATTER is before the Court upon Petitioner Marcus A. Carter’s pro se Petition
for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1).
I.
BACKGROUND
Petitioner is a prisoner of the State of North Carolina who, on September 10, 2014, was
convicted by a Gaston County Superior Court jury of taking indecent liberties with a child and
disseminating obscene literature. (Pet. 1-2, Doc. No. 1.) He was sentenced to 36-53 months
imprisonment for the first offense and 11-23 months imprisonment for the second.
On November 20, 2014, Petitioner filed a motion for appropriate relief (“MAR”) in the
Gaston County Superior Court; it was denied on December 2, 2014. (Pet., supra, at 3.) On
September 8, 2015, Petitioner filed a petition for writ of certiorari in the North Carolina Court of
appeals seeking review of the denial of his MAR. See State’s Resp. to Pet. for Writ of Certiorari,
State v. Carter, No. P15-691, at 1 (N.C. Ct. App. filed Sept. 23, 2015), available at North
Carolina Supreme Court and Court of Appeals Electronic Filing Site and Document Library,
https://ncappellatecourts.org/. It was denied on September 28, 2015. (Pet., supra, at 6.)
Petitioner filed the instant habeas Petition in this Court on June 23, 2016 when he signed
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and placed it in the prison mailing system. (Pet., supra, at 14.) The Court notified Petitioner that
his habeas Petition appeared to be untimely under 28 U.S.C. § 2244(d)(1)(A) and provided him
an opportunity to explain why it should not be dismissed as such. (Doc. No. 3.) Petitioner
subsequently filed a response to the Court’s Order. (Doc. No. 4.)
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 that 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 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 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).1 The limitations period is tolled during the pendency of a
properly filed state post-conviction action. 28 U.S.C. § 2244(d)(2).
1
There are three other possible start dates for the statute of limitations, § 2244(d)(1)(B), (C), or (D), none of which
applies here.
2
Judgment was entered in this case on September 10, 2014, when Petitioner was
sentenced. Petitioner had 14 days to file a notice of appeal in the North Carolina Court of
Appeals. See N.C. R. App. P. 4(a)(2). Because he did not file a direct appeal, Petitioner’s
conviction became final on or about September 24, 2014, when the time for seeking direct
review expired. See § 2244(d)(1)(A).
The federal statute of limitations then ran for 57 days until Petitioner filed his MAR on
November 20, 2014. The limitations period was tolled until December 2, 2014, when the court
denied Petitioner’s MAR.
The federal statute of limitations is tolled only while “a properly filed application for
State post-conviction or other collateral review is pending.” § 2244(d)(2). (Order 3.) “The time
that an application for state postconviction review is ‘pending’ includes the period between (1) a
lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided
that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189,
141 (2006) (citing Carey v. Saffold, 536 U.S. 214 (2002)) (emphasis added). North Carolina is
unusual, but not unique, see Saffold, 536 at 219, in that the equivalent of a collateral appeal – a
petition for writ of certiorari – must be filed without “unreasonable delay,” see N.C. Rule App.
P. 21(c) (2009). The Supreme Court has instructed that, “[]i]n the absence of (1) clear direction
or explanation from the [state appellate court] about the meaning of the term [‘unreasonable
delay’] in the present context, or (2) clear indication that a particular request for appellate review
was timely or untimely,” the federal habeas court must itself examine the delay and determine
what the state courts would have held in respect to timeliness. Chavis, 546 U.S. at 198.
In its Order notifying Petitioner that his § 2254 Petition appeared to be untimely, the
Court specifically drew attention to the fact that Petitioner did not file a petition for writ of
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certiorari in the North Carolina Court of Appeals until September 8, 2015, and provided him an
opportunity to explain the delay. (Order 3-4, Doc. No. 3.) In his Response, Petitioner states: “I
was notified that my petition was received late. By my calculations, I responded by the date I
received the notice. Due to mail time, the days were miscalculated. I would ask that you please
consider not cancelling my petition.” (Pet’r’s Resp., Doc. No. 4.) Petitioner’s Response, such as
it is, does not explain why it took him nine months after his MAR was denied to file his petition
for writ of certiorari in the North Carolina Court of Appeals.
The Court concludes that the North Carolina Court of Appeals would have found
Petitioner’s September 8, 2015 petition for writ of certiorari untimely. See e.g. In re L.R., 699
S.E.2d 479 (N.C. Ct. App. 2010) (finding ten-month delay between adjudication order and filing
of certiorari petition unreasonable); State v. Coxton, COA15-575-2, 2016 WL 4091181, at *1–2
(N.C. Ct. App. Aug. 2, 2016) (declining to grant certiorari petition in part because it was sought
more than eight months after entry of judgment) (unpublished). The fact that the North Carolina
Court of Appeals apparently denied the certiorari petition, rather than dismissing it, is not
dispositive evidence to the contrary. See Chavis, 546 U.S. at 194. As the Supreme Court
observed in Saffold, a court,
will sometimes address the merits of a claim that it believes was presented in an
untimely way: for instance, where the merits present no difficult issue; where the
court wants to give a reviewing court alternative grounds for decision; or where the
court wishes to show a prisoner (who may not have a lawyer) that it was not merely
a procedural technicality that precluded him from obtaining relief.
536 U.S. at 225–226; see also, Allen v. Mitchell, 276 F.3d 183, 186–87 (4th Cir. 2001) (“Allen's
petition was not dismissed as untimely. It does not follow, however, that there was no
‘unreasonable delay’ under Rule 21(c); the court of appeals may simply have opted to ‘excuse[ ]
the untimeliness as a matter of state law and rule[ ] on the merits.’”) (quoting Fernandez v.
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Sternes, 227 F.3d 977, 979-81 (7th Cir. 2000))).
Because it was untimely, Petitioner’s certiorari petition in the North Carolina Court of
Appeals was not “properly filed” and could not toll the federal statute of limitations. See §
2244(d)(2). Consequently, his one-year period to file a timely federal habeas petition expired on
or about October 6, 2015, 308 days after his MAR was denied. See § 2244(d)(1)(A). As such,
the § 2254 habeas Petition is untimely under § 2244(d)(1)(A).2
IT IS, THEREFORE, ORDERED that the Petition for Writ of Habeas Corpus (Doc.
No. 1) is DISMISSED as untimely.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases, the Court declines to issue a certificate of appealability as Petitioner has not
made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); MillerEl v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding that when
relief is denied on procedural grounds, a petitioner must establish both that the correctness of the
dispositive procedural ruling is debatable, and that the petition states a debatably valid claim of
the denial of a constitutional right).
Signed: June 6, 2017
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Petitioner has put forth no argument or reason that the statute of limitations should be equitably tolled. See
Holland v. Florida, 560 U.S. 631, 649 (2010).
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