Harshaw v. Hooks

Filing 3

ORDER that within 21 days from entrance of this Order, Petitioner shall file a response explaining why Petition should not be dismissed. Clerk shall substitute Erik A. Hooks for State of North Carolina as respondent. The Clerk shall amend the docket by removing Motion to to Appoint Counsel and Motion for Evidentiary Hearing which was filed as an exhibit. Signed by Chief Judge Frank D. Whitney on 11/29/2017. (Pro se litigant served by US Mail.)(nvc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:17-cv-00209-FDW
WAVERLY ORLANDO HARSHAW, JR.,

)
)
Petitioner,
)
)
vs.
)
)
ERIK A. HOOKS,1
)
)
Respondent.
)
__________________________________________)

ORDER

THIS MATTER is before the Court upon initial review of Petitioner Waverly Orlando
Harshaw, Jr.’s pro se Petition for Writ of Habeas Corpus, 28 U.S.C. § 2254. (Doc. No. 1.) Also
before the Court is Petitioner’s Motion to Appoint Counsel and Motion for Evidentiary Hearing.
(Doc. No. 2.)
I.

PROCEDURAL HISTORY

Petitioner 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.
Petitioner’s 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

1

Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts requires that a petition
for writ of habeas corpus name the person who has immediate custody of the petitioner as the respondent in the
action. Rule 2(a), 28 U.S.C. folio § 2254; see also Rumsfeld v. Padilla, 542 U.S. 426, 434–47 (2004) (stating the
writ should be directed to the “person who has the immediate custody of the party detained, with the power to
produce the body of such party before the court or judge.”). Erik A. Hooks, Secretary of the North Carolina
Department of Public Safety, is the proper respondent in this habeas action.

1

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.)
Petitioner 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.)
Petitioner 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.)
II.

STATUTE OF LIMITATIONS

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;
2

(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. The limitations period is tolled during the pendency of a properly filed state
post-conviction action. 28 U.S.C. § 2244(d)(2).
Petitioner’s 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).
Petitioner filed a standard § 2254 form which requires applicants whose criminal
judgment became final more than a year prior to explain why the one-year statute of limitations
does not bar their habeas petition. Petitioner ignored this requirement, providing no reason for
the untimeliness of his Petition. (§ 2254 Pet. ¶ 18.) Nevertheless, the Court shall provide him
another opportunity to explain why the instant Petition should not be dismissed as untimely.
In his response, Petitioner may include any reasons why equitable tolling, see Hill v.
Braxton, 277 F.3d 701 (4th Cir. 2002), or § 2244(d)(1)(B), (C), or (D) should apply.
3

Additionally, Petitioner may fill in any gaps in the timeline of his state court proceedings that he
believes are relevant to the timeliness of this Petition. Failure to comply with the Court’s Order
shall result in dismissal of the Petition without further notice.
IT IS, THEREFORE, ORDERED that:
1. Within 21 days from entrance of this Order, Petitioner shall file a response explaining
why his § 2254 Petition for Writ of Habeas Corpus should not be dismissed as
untimely;
2. The Clerk of Court shall amend the docket by removing the “Motion to Appoint
Counsel and Motion for Evidentiary Hearing” (Doc. No. 2), which was filed in error,
and filing that document as an exhibit to the Petition for Writ of Habeas Corpus; and
3. The Clerk of Court shall substitute Erik A. Hooks for “State of North Carolina” as the
respondent in this action.

Signed: November 29, 2017
2017

4