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11 F. App'x 351

Mitchell v. McDade

U.S. Courts of Appeals

Decided June 14, 2001

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U.S. Courts of Appeals · decided 2001-06-14

Applies 28 U.S.C. § 2254 (Antiterrorism and Effective Death Penalty Act of 1996)

Applies NC 7A § 7A-28

Relies on Christopher Artuz Superintendent Green Haven Correctional Facility v. Tony Bruce Bennett

Decided 2001-06-14

PER CURIAM.

¶1 In these consolidated appeals, Richard Mitchell appeals the district court’s orders denying relief on his petition filed under 28 U.S.C.A. § 2254 (West 1994 & Supp. 2000) and denying a certificate of appealability. We have reviewed the record and the district court’s orders and find no reversible error. Accordingly, because Mitchell’s § 2254 petition was tiled outside the applicable one-year limitations period, we deny certificates of appealability and dismiss the appeals substantially on the reasoning of the district court. See Mitchell v. McDade, No. CA-00-824-5-F (E.D.N.C. Feb. 14 & Mar. 13, 2001). * We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

¶2 DISMISSED.

*

¶3 Even if we accept as correct all of the information in Mitchell’s informal brief, the § 2254 petition is still untimely. The limitation period was tolled from March 25, 1999, when Mitchell filed his motion for appropriate relief, until September 23, 1999, when the North Carolina Court of Appeals denied his petition for a writ of certiorari; the limitation period was not tolled during the pendency of Mitchell’s subsequent filing with the North Carolina Supreme Court. See Artuz v. Bennett, 531 U.S. 4, 121 S.Ct. 361, 364, 148 L.Ed.2d 213 (2000); N.C.Gen.Stat. § 7A-28(a). Excluding that time from the calculation, Mitchell had until August 4, 2000 to file his § 2254 petition. Because the petition was not filed until November 2000, it was untimely even under the dates now offered by Mitchell.

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