Black v. Dismukes

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
FILE NUMBER 3:23-cv-00705-MR
MARTINEZ BLACK, )
)
Petitioner, )
)
vs. ) MEMORANDUM OF
) DECISION AND ORDER
LESLIE COOLEY DISMUKES, )
Secretary, North Carolina )
Department of Adult Correction, )
)
Respondent. )
________________________________ )
THIS MATTER is before the Court on the Petition for a Writ of Habeas
Corpus, filed by Petitioner under 28 U.S.C. § 2254 on October 26, 2023, [No.
3:23-cv-00705-MR; Doc. 1],1 and the Respondent’s Motion to Dismiss. [Id.;
Doc. 14].
I. BACKGROUND
Martinez Black (the “Petitioner”) is a prisoner of the State of North
Carolina, currently incarcerated at the Caswell Correctional Center.2 The
1 Because this Order must refer to documents contained in other cases Petitioner has
filed with the Court, citations to all documents will be preceded by the Court’s file number
where such documents reside. The Court takes judicial notice of all such documents. Fed.
R. Evid. 201.
2 See https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID=0
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 1 of 23

2
Petitioner has filed this habeas proceeding not seeking to challenge certain
underlying convictions but asserting that the North Carolina Department of
Adult Correction has failed to credit his sentences flowing from such
convictions with time he spent in pretrial detention.
On February 4, 2008, Petitioner was convicted of Voluntary
Manslaughter, Possession of a Firearm by a Felon, and having attained
Habitual Felon status. [No. 3:20-cv-00116-RJC; Doc. 1-1 at pp. 4-7]. These
convictions occurred in the Superior Court of Mecklenburg County, North
Carolina (collectively “Mecklenburg County Convictions”). For Petitioner’s
Habitual Voluntary Manslaughter conviction, case file number 04-CRS-
239042, the state court imposed upon Petitioner a sentence of 130 to 165
months imprisonment. [Id.; Doc. 1-1 at 4]. For Petitioner’s Habitual
Possession of a Firearm by a Felon conviction, case file number 04-CRS-
61836, the state court imposed upon Petitioner a consecutive sentence of
130 to 165 months imprisonment. [Id.; Doc. 1-1 at 6]. Each written judgment
initially3 set forth that Petitioner be given credit for 1,231 days spent in pretrial
confinement toward each respective sentence. [Id.].
032357&searchOffenderId=0032357&searchDOBRange=0&listurl=pagelistoffendersear
chresults&listpage=1 (herein “NCDAC Database”); Fed. R. Evid. 201.
3 Respondent readily concedes that, “[i]n an apparent clerical error,” both initial written
judgments from the Mecklenburg County Superior Court provided for 1,231 days of
pretrial credit. [No. 3:23-cv-00705-MR; Doc. 15 at 2]. According to Respondent, sometime
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 2 of 23

3
Petitioner has completed his first sentence and has begun serving his
second sentence. Petitioner claims he has not received any pretrial detention
credit ordered by the state court for his second sentence. Petitioner alleges,
After trial I was sentenced to two consecutive 130 to 165
sentences I had 1,231 day of credit for my offenses at sentencing
I received credit to “Both” sentences for 1,231 days upon my
arrival at NCDAC “Someone” took “Whiteout” and erased my
credits so I have not been given the proper Legal Pretrial credit
on the sentence captioned on this motion. You can “Clearly” see
on my judgment that my credit was given then somebody took
whiteout to remove it plus my release date and printout reflects I
did not receive this credit.
[Doc. 1 at 5].
Because Petitioner identified discrepancies between the calculation of
his two sentences which could be the result of a failure to credit his pretrial
detention time toward the completion of his second sentence, the Court
entered an Order on March 19, 2025, directing the Respondent to answer or
otherwise plead to the petition. [No. 3:23-cv-00705-MR; Doc. 6]. The
Respondent filed a Motion to Dismiss [Id.; Doc. 14] on August 18, 2025, and
accompanying Memorandum with exhibits. [Id.; Doc. 15]. Thereafter, the
Court notified Petitioner of the Respondent’s Motion to Dismiss by Order
after the date of Petitioner’s convictions on February 4, 2008, but before April 21, 2008,
the date the North Carolina Department of Adult Correction received Petitioner’s final
written judgments, the 1,231 days of pretrial detention credit was removed from
Petitioner’s Habitual Possession of a Firearm by a Felon judgment. [Id.].
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 3 of 23

4
dated September 22, 2025 [Id.; Doc. 20], and permitted Petitioner an
opportunity to reply to Respondent’s dismissal motion. Petitioner filed his
reply with exhibits on November 19, 2025. [Id.; Doc. 27]. The matter is thus
ripe for resolution.
II. DISCUSSION
A. Standard of Review
28 U.S.C. § 2254 applies to “a person in custody under a state-court
judgment who seeks a determination that the custody violates the
Constitution, laws, or treaties of the United States. Rule 1(a)(1), 28 U.S.C.
foll. § 2254. Under § 2254, a state prisoner’s claims are limited to allegations
that challenge either the fact or duration of their confinement. Preisier v.
Rodriguez, 411 U.S. 475, 489 (1973).
In reviewing Petitioner’s claims, the Court must consider the
requirements governing petitions for habeas corpus under § 2254(d) of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). That section of
the AEDPA applies to “a person in custody under a state-court judgment who
seeks a determination that the custody violates the Constitution, laws, or
treaties of the United States.” Rule 1(a)(1), 28 U.S.C. foll. § 2254. A federal
court may not grant § 2254 relief as to any claim “adjudicated on the merits”
in state court unless the state court’s adjudication of such claim:
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 4 of 23

5
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
Id. § 2254(d).
A state court’s decision constitutes an unreasonable application of
clearly established federal law under § 2254(d)(1) when the state court
correctly identifies the “governing legal principle . . . but unreasonably
applies that principle to the facts of the . . . case.” Barnes v. Joyner, 751
F.3d 229, 238 (4th Cir. 2014) (citation omitted). To find an “unreasonable
application of federal law” requires a “substantially higher threshold” to
overcome. Schiro v. Landrigan, 550 U.S. 465, 473 (2007). In making this
assessment, the habeas court looks “to whether the state court’s application
of law was objectively unreasonable and not simply whether the state court
applied the law incorrectly.” Barnes, 751 F.3d at 238-39 (citation omitted).
For a state court’s factual determination to be held unreasonable under
§ 2254(d)(2), “[the determination] must be more than merely incorrect or
erroneous.” Williams v. Stirling, 914 F.3d 302, 312 (4th Cir. 2019) (citation
omitted). The state court’s finding must be “sufficiently against the weight of
the evidence that it is objectively unreasonable.” Id. (citation omitted). The
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 5 of 23

6
AEDPA also provides that “a determination of a factual issue made by a
State court shall be presumed to be correct” absent “clear and convincing
evidence” to the contrary. 28 U.S.C. § 2254(e)(1). These provisions of the
AEDPA, “operating in tandem,” require that a petitioner seeking relief under
§ 2254(d)(2) establish that the state court’s factual finding was “incorrect by
clear and convincing evidence, and that the corresponding factual
determination was objectively unreasonable in light of the record before the
court.” Merzbacher v. Shearin, 706 F.3d 356, 364 (4th Cir. 2013) (quoting
Miller-El v. Cockrell, 537 U.S. 322, 348 (2003) (internal quotation marks
omitted)).
In sum, a federal court ‘‘shall not’’ grant a writ of habeas corpus unless
the earlier decision took an ‘‘unreasonable’’ view of the facts or law. 28
U.S.C. § 2254(d). By design, this ‘‘standard is difficult to meet.’’ Harrington
v. Richter, 562 U.S. 86, 102 (2011). The term ‘‘unreasonable’’ refers not to
‘‘ordinary error,’’ plain error, or even to circumstances where the petitioner
offers ‘‘a strong case for relief,’’ but rather to “extreme malfunctions in the
state criminal justice syste[m].” Id. (internal citation omitted). The critical
question is whether the state court “managed to blunder so badly that every
fairminded jurist would disagree” with its outcome. Mays v. Hines, 141 S.
Ct. 1145, 1149 (2021).
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 6 of 23

7
B. Respondent’s Motion to Dismiss
1. Successiveness of the Petition
Petitioner sustained the Mecklenburg County Convictions on February
4, 2008. [No. 3:23-cv-00705-MR; Doc. 1 at 1]. Petitioner then appealed to
the North Carolina Court of Appeals which found no error. State v. Black,
197 N.C. App. 731, 678 S.E.2d 689 (2009). Petitioner appealed further to
the North Carolina Supreme Court which dismissed his appeal. State v.
Black, 363 N.C. 657, 685 S.E.2d 108 (2009). Petitioner did not seek further
direct review in the U.S. Supreme Court.4
Petitioner commenced post-conviction collateral litigation by filing a pro
se Motion for Appropriate Relief (herein “MAR”) in the Mecklenburg County
Superior Court on June 4, 2010. [No. 3:12-cv-00286-RJC; Doc. 1-1 at pp. 11
to 16]. The Superior Court found that Petitioner’s MAR did “not state any
grounds for which the Court may grant relief” and therefore denied and
dismissed the same on June 18, 2010. [Id.; Doc. 1-1 at 10]. The Petitioner
4 While Petitioner states in his present petition he filed a certiorari petition with the U.S.
Supreme Court on direct review of his convictions [No. 3:23-cv-00705-MR; Doc. 1 at 2],
in his first federal habeas action contesting the Mecklenburg County Convictions
Petitioner stated he did not file such a certiorari petition with the U.S. Supreme Court.
[No. 3:12-cv-00286-RJC; Doc. 1 at 2]. The only matter ever filed in the U.S. Supreme
Court by Petitioner was a petition for writ of certiorari seeking review of a Mecklenburg
County Superior Court order dated January 11, 2017, denying a different one of
Petitioner’s many collateral motions for appropriate relief. Martinez Orlando Black v.
North Carolina, No. 18-5127 (pet. for cert. filed Jan. 30, 2018).
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 7 of 23

8
sought review of the Superior Court’s order by way of petition for writ of
certiorari in the North Carolina Court of Appeals. [Id.; Doc. 1-1 at pp. 3 to 5].
The appellate court denied Petitioner’s request by its order dated November
24, 2010. [Id.; Doc. 1-1 at 1].
Petitioner filed his first § 2254 petition on May 7, 2012, challenging the
constitutionality of his custody based upon his Mecklenburg County
Convictions. [No. 3:12-cv-00286-RJC; Doc. 1]. This Court dismissed that
petition on February 13, 2013, having found that it was filed beyond the
applicable statute of limitations. [Id.; Doc. 12]. Petitioner appealed that
dismissal order, and on October 3, 2023, the Fourth Circuit Court of Appeals
dismissed Petitioner’s appeal for want of jurisdiction because Petitioner filed
his notice of appeal more than ten years too late. Black v. Parsons, No. 23-
6509 (4th Cir. Oct. 3, 2023).
On August 6, 2019, Petitioner filed another MAR in the Mecklenburg
County Superior Court. According to Petitioner, he filed this MAR “not in any
form or fashion challenging my [Mecklenburg County] convictions” but
“challenging the way my sentence was carried out.” [No. 3:23-cv-00705-MR;
Doc. 15-14 at 22]. In that MAR, Petitioner included a copy of his correct
Habitual Possession of a Firearm by a Felon judgment (showing no pretrial
credit time) when making his argument that his Habitual Felon status was
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 8 of 23

9
unlawful. [Id.; Doc. 15-14 at 20]. The state trial court denied Petitioner’s
MAR by order5 filed September 23, 2019 [Id.; Doc. 15-14 at pp. 11-14], and
the North Carolina Court of Appeals thereafter denied Petitioner’s request
for review of such order on February 24, 2020. [Id.; Doc. 15-14 at 2].
Petitioner filed another § 2254 petition, this one on May 17, 2023,
challenging the constitutionality of his custody based on the same
Mecklenburg County Convictions. [No. 3:23-cv-00297-MR; Doc. 1]. With this
submission, Petitioner sought to challenge his 2008 conviction for having
attained Habitual Felon status, just as he did in his August 6, 2019, MAR
filed in state court. This Court dismissed the petition on April 16, 2024, finding
that it was an unauthorized successive petition. [Id.; Doc. 6].
5 The state trial court’s order denying this MAR correctly recited Petitioner’s sentences
consistent with its oral pronouncement of sentence following Petitioner’s trial:
On or about February 4, 2008 a jury convicted the Defendant of voluntary
manslaughter, possession of firearm by a felon and of being a habitual felon.
On the voluntary manslaughter verdict the Honorable Linwood Foust
sentenced the Defendant as a habitual felon in the aggravated range to 130
to 165 months imprisonment. The Defendant was given credit for 1231 days
spent in pre-trial confinement. This sentence was to begin at the expiration
of all sentences which the defendant is presently obligated to serve. On the
possession of a weapon by a convicted felon Judge Foust sentenced him
as a habitual felon in the aggravated range to 130 to 165 months
imprisonment, to run consecutive to the voluntary manslaughter charge.
[Id.; Doc. 15-14 at 20]. See also, Section II.B.3., infra, at 20 (state trial court transcript of
Petitioner’s sentencing hearing).
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 9 of 23

10
Petitioner filed the instant habeas petition on October 26, 2023,
asserting that the North Carolina Department of Adult Correction failed to
properly credit his sentences flowing from his Mecklenburg County
Convictions. [No. 3:23-cv-00705-MR; Doc. 1 at 5]. Respondent asserts, in
her dismissal motion, that the present petition is yet another unauthorized
successive habeas petition filed by Petitioner challenging the same state
court judgments. [Id.; Doc. 15 at pp. 10-11]. Pursuant to 28 U.S.C. §
2244(b)(3)(A), “[b]efore a second or successive application permitted by this
section is filed in the district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court to consider the
application.” Thus, according to Respondent, Petitioner must first obtain an
order from the Fourth Circuit Court of Appeals before this Court can consider
any successive petition under 28 U.S.C. § 2254. [Id.]. And because
Petitioner has not shown that he has obtained the permission of the Fourth
Circuit to file a successive petition, Respondent asserts this successive
petition must be dismissed. [Id.]. See Burton v. Stewart, 549 U.S. 147, 153
(2007) (holding that failure of petitioner to obtain authorization to file a
“second or successive” petition deprived the district court of jurisdiction to
consider the second or successive petition “in the first place.”).
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 10 of 23

11
In response, and because he is challenging what he contends is the
denial of legitimate sentencing credit – and not the constitutionality of his
underlying Mecklenburg County Convictions – Petitioner asserts that §
2254’s successiveness authorization requirement is not applicable to his
case. [No. 3:23-cv-00705-MR; Doc. 27 at 7]. Petitioner’s argument, however,
is foreclosed by circuit precedent. The Fourth Circuit has unequivocally held
that,
regardless of how they are styled, federal habeas petitions of
prisoners who are “in custody pursuant to the judgment of a State
court” should be treated as “applications under section 2254” for
purposes of § 2244(b), even if they challenge the execution of a
state sentence. Therefore, those petitions are subject to the
second-or-successive authorization requirement set forth in §
2244(b)(3).
In re Wright, 826 F.3d 774, 779 (4th Cir. 2016) (emphasis added, footnote
omitted). Petitioner, like Mr. Wright, nevertheless contends that the “second
or successive” bar remains inapplicable because the claim in his present
petition was not previously brought in a prior petition; “this petition is ‘NOT’
successive because ‘All Prior’ Motions ‘Only’ challenged my ‘Convictions’ not
Jail Credit!!” [No. 3:23-cv-00705-MR; Doc. 27 at 7].
The phrase “second or successive” is not self-defining and “takes its
full meaning from [the Supreme Court's] case law, including decisions
predating the enactment of the…AEDPA[.]” Panetti v. Quarterman, 551 U.S.
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 11 of 23

12
930, 943-4 (2007). Because of this, the Fourth Circuit determined – looking
to Supreme Court precedent – that new claims raised in subsequent habeas
petitions were “abusive” (i.e., “successive”) if those claims were available to
the petitioner at the time of a prior petition's filing. Wright, 826 F.3d at 784
(citations omitted). See McCleskey v. Zant, 499 U.S. 467, 489 (1991) (“Our
recent decisions confirm that a petitioner can abuse the writ by raising a
claim in a subsequent petition that he could have raised in his first,
regardless of whether the failure to raise it earlier stemmed from a deliberate
choice.”). Further, the Circuit observed this principle “is not confined to
instances where litigants deliberately abandon claims; it also applies to
instances where litigants, through inexcusable neglect, fail to raise available
claims.” Wright, 826 F.3d at 784 (citations and internal quotations omitted).
With the foregoing in mind, the claim Petitioner raises in his present
petition was clearly available to him when he filed an MAR in the state trial
court on August 6, 2019, as well as when he filed a prior § 2254 petition in
this Court on May 17, 2023. In that MAR, as noted above, Petitioner included
a copy of his correct Habitual Possession of a Firearm by a Felon judgment
(showing no pretrial credit time) when making his argument to the state court
that his Habitual Felon status was unlawful. [No. 3:23-cv-705-MR; Doc. 15-
14 at 22]. Petitioner’s use of the correct Habitual Possession of a Firearm
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 12 of 23

13
by a Felon judgment in that 2019 MAR establishes at that time that he knew
(or should have known) he was not entitled to pretrial detainment credit
against both sentences flowing from his Mecklenburg County Convictions.
Thereafter, Petitioner raised this same MAR claim in his § 2254 petition (filed
May 17, 2023) predating the present action. Accordingly, Petitioner’s present
claim is “abusive” as it was available to him at the time of a prior petition's
filing and could have been raised then. Therefore, based on pre-AEDPA
abuse-of-the-writ principles, the present petition must be deemed “second or
successive.” Because Petitioner has not shown that he has obtained the
permission of the Fourth Circuit to file a successive petition, the present
petition shall be dismissed.
2. Timeliness of the Petition
In reviewing a § 2254 petition, the Court is guided by Rule 4 of the
Rules Governing Section 2254 Cases, which directs the district court to
dismiss a petition when it plainly appears from the petition and any exhibits
that the petitioner is entitled to no relief. Rule 4, 28 U.S.C.A. foll. § 2254.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),
a petitioner’s ability to attack the execution of his sentence which flowed from
his state criminal judgment is subject to a one-year statute of limitations.
The AEDPA, as amended in 1996, provides in relevant part:
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 13 of 23

14
A 1-year period of limitation shall apply to an application for a writ
of habeas corpus by a person in custody pursuant to the
judgment of a State court. The limitation period shall run from the
latest of—
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time seeking
such review;
* * * * *
(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)(A) and (d)(1)(D). Respondent argues that Petitioner
filed this action beyond the limitations period under § 2244(d)(1)(A) and the
petition, therefore, should be dismissed. [No. 3:23-cv-00705-MR; Doc. 15 at
12]. While the Court concludes that the present petition is untimely, it does
so for reasons different than those asserted by Respondent. The Court
begins by addressing the limitations period under the finality of judgment
subsection, 2244(d)(1)(A), that Respondent asserts controls this issue.
North Carolina's direct review process begins with an appeal from the
trial court to the North Carolina Court of Appeals. Petitioner pursued a direct
appeal to the Court of Appeals which affirmed his convictions and sentences
on July 7, 2009. State v. Black, 197 N.C. App. 731, 678 S.E.2d 689 (2009).
Petitioner appealed further to the North Carolina Supreme Court which
dismissed his appeal on October 8, 2009. State v. Black, 363 N.C. 657, 685
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 14 of 23

15
S.E.2d 108 (2009). Petitioner did not seek further direct review in the U.S.
Supreme Court.
After a state’s highest appellate court issues its decision in the direct
appeal of a criminal case, a defendant who timely files a petition for writ of
certiorari with the United States Supreme Court thereby tolls the habeas
statute of limitations period while such petition is pending. If no petition for a
writ of certiorari is filed in the United States Supreme Court on direct review,
the one-year limitation period for filing a habeas corpus petition begins
running when the time for doing so has elapsed, normally 90 days pursuant
to Supreme Court Rule 13. Hill v. Braxton, 277 F.3d 701, 704 (4th Cir. 2002).
Since Petitioner did not seek Supreme Court review, his judgment thus
became final on January 6, 2010, ninety days following the issuance of the
North Carolina Supreme Court’s decision. Petitioner therefore had one year
– until January 6, 2011 – to file his petition with this Court to comply with the
AEDPA limitations deadline.
Section 2244(d)(2) of the AEDPA specifies the circumstances under
which the statute of limitations period may be tolled:
The time during which a properly filed application for State post-
conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any
period of limitation under this subsection.
28 U.S.C. § 2244(d)(2). With this statutory tolling provision in mind, the
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 15 of 23

16
Petitioner’s limitations period ran for 149 days, from January 6, 2010, until
June 4, 2010, when Petitioner filed his MAR in the Mecklenburg County
Superior Court. [No. 3:12-cv-00286-RJC; Doc. 1-1 at pp. 11 to 16]. The
Superior Court found that Petitioner’s MAR did “not state any grounds for
which the Court may grant relief” and therefore denied and dismissed the
same on June 18, 2010. [Id.; Doc. 1-1 at 10]. The Petitioner sought review
of the Superior Court’s order by way of petition for writ of certiorari in the
North Carolina Court of Appeals. [Id.; Doc. 1-1 at pp. 3 to 5]. The appellate
court denied Petitioner’s request by its order dated November 24, 2010 [Id.;
Doc. 1-1 at 1], ending Petitioner’s collateral review proceedings. Accordingly,
Petitioner’s MAR was no longer “pending” pursuant to 28 U.S.C. § 2244(d)(2)
as of November 24, 2010, and he was not entitled to statutory tolling beyond
that date. Rouse v. Lee, 339 F.3d 238 (4th Cir. 2003) (en banc). The
limitations period thus began to run again November 24, 2010, and expired
216 days later on June 28, 2011. Since “Petitioner’s time to petition this Court
expired on 28 June 2011, more than a decade prior to the filing of the instant
petition[,]” Respondent contends the present petition is untimely and must
be dismissed. [No. 3:23-cv-00705-MR; Doc. 15 at 15].
In response, Petitioner rhetorically asks, “How can the state claim to
have me time barred when the state cannot even tell you when my judgment
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 16 of 23

17
was changed?” [3:23-cv-00705-MR; Doc. 27 at 6]. Petitioner implies that the
burden shifted to the Respondent to prove the exact date Petitioner’s
erroneous judgment was corrected. This, however, is simply not the law
under the factual discovery limitations period of subsection 2244(d)(1)(D),
and Plaintiff presents no support for this proposition. The limitations period
for the purposes of 28 U.S.C. § 2244(d)(1)(D) is determined from when
discovery of the factual predicate for the habeas claim could have been
reasonably discoverable through the exercise of due diligence. Section
2244(d)(1)(D) does not commence when the factual predicate was actually
discovered by a given prisoner but when it could have been discovered by
due diligence. Owens v. Boyd, 235 F.3d 356, 359 (4th Cir. 2000)
Here, Respondent argues Petitioner knew or should have known the
factual predicate for his claim on February 4, 2008. That was the date the
state trial court imposed its sentences upon Petitioner and explicitly stated
that only one of his two consecutive sentences would receive pretrial
detention credit. Petitioner clearly was present at his own sentencing
hearing. Whether Petitioner immediately thereafter received a copy of the
judgment that erroneous included such credit is beside the point according
to Respondent. [3:23-cv-00705-MR; Doc. 15 at pp. 14-15]. The Court need
not determine whether these circumstances are sufficient to impute to
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 17 of 23

18
Petitioner knowledge of his claim’s predicate facts; Petitioner admitted to
possessing actual knowledge of them. “Petitioner through Due Dilligence got
a hold of the Judgment that the NCDAC had ‘Changed’ without notifying
Petitioner or his counsel[.]” [Id.; Doc. 27 at 7 (errors uncorrected)]. Petitioner
does not state precisely when he “got a hold” of the corrected judgment,6 but
based upon his previous filings, he clearly possessed a copy of it by August
6, 2019, when he included it in his MAR filed that day in the Mecklenburg
County Superior Court.
As such, the limitations period, for the purposes of 28 U.S.C. §
2244(d)(1)(D), began to run no later than August 6, 2019, and expired one
year later on some date on or before August 5, 2020. Petitioner’s October
26, 2023, filing date for the present petition is clearly beyond the expiration
of this limitations period and the petition is therefore untimely under §
2244(d)(1)(D).7
While the Fourth Circuit has held that the AEDPA statute of limitations
is subject to equitable tolling, Rouse v. Lee, 339 F.3d 238, 246 (4th Cir.
2003), Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000), equitable
6 Petitioner wrote a letter to the state trial court on January 20, 2016, requesting copies
of the judgments from his Mecklenburg County Convictions. [3:23-cv-00705-MR; Doc. 15-
10 at 2]. There is no indication in the record if or when such copies were sent to him.
7 The Court uses the limitations period established by § 2244(d)(1)(D) as it is the “latest
of” the two pertinent periods. 28 U.S.C. § 2244(d)(1).
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 18 of 23

19
tolling is appropriate when, but only when, “extraordinary circumstances
beyond [the petitioner's] control prevented him from complying with the
statutory time limit.” Harris, 209 F.3d at 330.
In replying to Respondent’s argument that the petition is untimely,
Petitioner simply states, “I presented my claim when ‘I’ discovered it through
Due Dilligence & presented it to the state court as soon as it was discovered
that’s all I can do in my situation of being incarcerated for over 21yrs.” [Id.;
Doc. 27 at 8 (errors uncorrected)]. Petitioner’s statement is self-serving; he
points to no evidence that he raised or pursued his present claim in any of
his numerous state MARs filed before this action, or that extraordinary
circumstances beyond his control prevented him from doing so either in state
court or here. Petitioner, therefore, is not entitled to equitable tolling. The
pending § 2254 petition is untimely, and this Court is without jurisdiction to
review the same.
3. The Merits of Petitioner’s Claim
Even if the petition in this matter were not dismissed as successive
and/or untimely, the Petitioner would not prevail on the merits. Respondent‘s
inability to identify who revised the Habitual Possession of a Firearm by a
Felon judgment or exactly when it was done is irrelevant. Correcting such
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 19 of 23

20
judgment was required and occurred for two reasons. [No. 3:23-cv-00705-
MR; Doc. 15 at 3].
First, removing the 1,231 days of pretrial credit from Petitioner’s
Habitual Possession of a Firearm by a Felon judgment was necessary to
bring said judgment into compliance with the state trial court’s oral
pronouncement. [No. 3:23-cv-00705-MR; Doc. 15 at 2]. After the state trial
court recited Petitioner’s sentences, Petitioner’s defense attorney and the
state trial court engaged in the following exchange:
[Petitioner’s Counsel]: Your Honor, Mr. Black is entitled to
one thousand two hundred and thirty one days of pretrial credit
which he would like to have applied to the voluntary
manslaughter.
THE COURT: One thousand two hundred and –
[Petitioner’s Counsel]: thirty one days.
THE COURT: The defendant shall receive one thousand
two hundred and thirty one days of pretrial confinement [sic] on
the voluntary manslaughter charge.
[No. 3:12-cv-00286-RJC; Doc. 1-4 at 152 (quoting the state trial court
transcript)]. Petitioner does not contest these facts.
The second reason the Habitual Possession of a Firearm by a Felon
judgment required correction is that state law prohibited the crediting of
pretrial confinement time to both of Petitioner’s consecutive sentences. [No.
3:23-cv-00705-MR; Doc. 15 at 2-3, n.2]. Plaintiff cannot get credit for the
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 20 of 23

21
1231 days twice under North Carolina law, “[c]onsecutive sentences shall be
considered as one sentence for the purpose of providing credit, and the
creditable time shall not be multiplied by the number of consecutive offenses
for which a defendant is imprisoned.” N.C. Gen. Stat. § 15-196.2 (effective
1973). Therefore, even if the state trial court wished to credit both of
Petitioner’s consecutive sentences with 1,231 pretrial days (which it did not),
it was foreclosed from doing so – its judgments would have violated North
Carolina law. Petitioner counters that the Fourth Circuit “has ruled that
N.C.G.S. 196.2 is palpably ‘Unconstitutional’ ” citing Ham v. North Carolina,
471 F.2d 406 (4th Cir. 1973). [No. 3:23-cv-00705-MR; Doc. 27 at 8].
Petitioner’s reading of that case is erroneous. In Ham, the Circuit ruled that
it would be “palpably unconstitutional” to apply N.C. Gen. Stat. § 15-176.2 (a
precursor to § 15-196.2) granting presentence detention credit prospectively
only and not to persons like Mr. Ham whose case was adjudicated before its
enactment. 471 F.2d at 408.
For both of these reasons Petitioner cannot prevail on the merits of his
claim. As the transcript from the state trial court makes plain, neither that
court nor Petitioner’s defense attorney ever intended Petitioner to double-dip
and receive 1,231 days credit against both judgments. Some unknown state
official made a clerical error by including Petitioner’s pretrial detention time
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 21 of 23

22
on both of his judgments, but it was later corrected. Unfortunately Petitioner
received a copy of the erroneous judgment.
Far from “blundering” in reaching its outcome, the state trial court “got
it right” when its Habitual Possession of a Firearm by a Felon judgment was
revised to remove the duplicative pretrial credit. Aside from the present
petition being subject to dismissal as an unauthorized successive petition,
and as having been filed beyond the applicable limitations period,
Respondent’s explanation surrounding the correction of Petitioner’s Habitual
Possession of a Firearm by a Felon judgment is sound. The State’s
unconventional correction of its clerical error was a decision based on an
eminently reasonable determination of the facts in light of the evidence
presented in the state court proceeding. Petitioner’s claim is meritless.
III. CONCLUSION
For the reasons stated herein, the Court will dismiss Petitioner’s
habeas petition because it is an unauthorized, successive petition and it is
filed beyond the applicable limitations period. Pursuant to Rule 11(a) of the
Rules Governing Section 2254 Cases, this Court will decline to issue a
certificate of appealability. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537
U.S. 322, 338 (2003) (in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district court’s
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 22 of 23

23
assessment of the constitutional claims debatable or wrong); Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (when relief is denied on procedural
grounds, a petitioner must establish both that the dispositive procedural
ruling is debatable and that the petition states a debatable claim of the denial
of a constitutional right).
O R D E R
IT IS, THEREFORE, ORDERED that:
1. Respondent’s Motion to Dismiss [No. 3:23-cv-00705-MR; Doc.
14] is GRANTED;
2. The Petition for a Writ of Habeas Corpus, filed by Petitioner
under 28 U.S.C. § 2254 [No. 3:23-cv-00705-MR; Doc. 1], is DISMISSED;
3. Pursuant to Rule 11(a) of the Rules Governing Section 2254
Cases, this Court DECLINES to issue a certificate of appealability; and
4. The Clerk of Court is respectfully directed to close this case.
IT IS SO ORDERED. Signed: December 31, 2025
Case 3:23-cv-00705-MR Document 30 Filed 01/02/26 Page 23 of 23