govinfo:USCOURTS-ncwd-3_26-cv-00380-0

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF NORTH CAROLINA 
CHARLOTTE DIVISION 

 
CEDRIC A. LIVINGSTON, ) 
 ) 
Petitioner, ) 
) MEMORANDUM OF 
vs. ) DECISION AND ORDER 
) 
LESLIE COOLEY DISMUKES, ) 
Secretary, North Carolina ) 
Department of Adult Correction, ) 
 ) 
 Respondent. ) 
________________________________ ) 
 
 THIS MATTER is before the Court on review of the pro se Petition for 
Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254, by Cedric A. 
Livingston (herein “Petitioner”) on May 11, 2026. [Doc. 1]. Also before the 
Court is the Petitioner’s Motion to Proceed In Forma Pauperis. [Doc. 2]. 
I. BACKGROUND 
 The Petitioner is a prisoner of the State of North Carolina. [Doc. 1 at 
1]. According to the North Carolina Department of Adult Correction 
Database,1 the Petitioner was convicted in Mecklenburg County Superior 
Court on April 5, 2022, on one count of assault with a deadly weapon with 
 
1 See https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID= 
0746823&searchOffenderId=0746823&searchDOBRange=0&listurl=pagelistoffendersea
rchresults&listpage=1(herein “NCDAC Database”); Fed. R. Evid. 201. 

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intent to kill inflicting serious injury, and one count of possession of a firearm 
by a felon. The Petitioner’s two convictions were consolidated for the 
purpose of sentencing, and he received an active term of imprisonment of 
87 to 117 months. [Doc. 1-1 at 3]. The Petitioner’s projected release date 
from imprisonment is August 15, 2027. [NCDAC Database]. 
 The Petitioner filed no direct appeal of his state court judgment. [Doc. 
1 at 2]. Likewise, the Petitioner did not institute any post-conviction collateral 
proceedings in state court. [Id. at 3]. The Petitioner filed his pro se Petition 
for Writ of Habeas Corpus on May 11, 2026, in the U.S. District Court for 
Eastern District of North Carolina. [Doc. 1]. Because the state court judgment 
the Petitioner seeks to attack was issued by the Mecklenburg County 
Superior Court located within this judicial district, The Eastern District Court 
transferred the Petitioner’s habeas action to this Court on May 12, 2026, as 
the proper venue. [Doc. 3]. 
 In conducting its initial review of the § 2254 petition herein, the Court 
preliminarily concluded that the Petitioner’s habeas action was filed beyond 
the applicable one-year statute of limitations. Accordingly, the Court entered 
an Order May 13, 2026, directing the Petitioner, within twenty-one (21) days 
of the entry of the Order, to file a document explaining why his § 2254 petition 
should not be dismissed as untimely. [Doc. 7]. The Court warned the 

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Petitioner that his failure to comply with the provisions of the Order within 
such time would result in the dismissal of this action. [Id.]. The twenty-one 
day period set forth in the Court’s Order has expired and the Petitioner has 
filed nothing in response to it. 
II. DISCUSSION 
 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; 
 
(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 Petitioner sustained his state convictions four years ago. Further, 
the Petitioner filed no direct appeal, nor did he pursue any post -conviction 

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relief. Since Petitioner filed no direct appeal, the Petitioner’s convictions 
became final at the expiration of the time for seeking direct review of them, 
which is fourteen days under North Carolina law . See N.C.R. App. 4(a) (a 
party entitled to appeal from a judgment in a criminal action may take appeal 
by giving oral notice of appeal at trial, or filing notice of appeal with the clerk 
of superior court within fourteen days after entry of the judgment). Thus, the 
Petitioner’s 365-day limitations period began to run on Tuesday, April 19 , 
2022, fourteen days after the entry of his state judgment on April 5, 2022. 
Nothing else appearing, the limitations period for Petitioner to commence this 
action ran from April 19, 2022, until it expired 365 days later on April 19, 
2023. 28 U.S.C. § 2244(d)(1)(A). The present action, commenced May 11, 
2026, is filed three years beyond the limitations period and is therefore 
subject to dismissal. 
 The Petitioner has filed nothing in response to the Court’s Order of May 
13, 2026. Further, the Petitioner gave no meaningful explanation, under 
Question 18 of his § 2254 petition, regarding how he has complied with the 
applicable AEDAP limitations period or what good cause exists to excuse his 
non-compliance. In response to Question 18, the Petitioner simply cites to 
the Supreme Court case of Dept. of Education v. Brown, 600 U.S. 551 (2023) 
and “Article (3) Section (2) Clause (one)” of the U.S. Constitution. [Doc.1 at 

5 
 
15]. Brown was a civil case wherein the plaintiffs sued the Secretary of 
Education to enjoin him from implementing a student loan forgiveness plan. 
The Supreme Court never reached the merits of the case as it concluded the 
plaintiffs lacked standing under Article III, § 2 of the Constitution . The 
Petitioner’s citation to Brown and his reference to the “Cases” or 
“Controversies” provision of the Constitution has nothing at all to do with 
excusing the un timeliness of a § 2254 petition. Accordingly, the Petitioner 
has failed to put forth any evidence or argument that his § 2254 petition is 
timely, or that he is entitled to statutory tolling of the limitations period under 
§ 2244(d)(1) (B)-(D), or that equitable tolling of limitations period is 
appropriate. As such, the § 2254 petition shall be dismissed as untimely. 
III. CONCLUSION 
For the foregoing reasons, the § 2254 petition filed in this action shall 
be dismissed and the Petitioner’s IFP motion shall be denied. Pursuant to 
Rule 11(a) of the Rules Governing Section 2254 Cases, the Court declines 
to issue a certificate of appealability. 28 U.S.C. § 2253(c)(2); Miller-El v. 
Cockrell, 537 U.S. 322, 338 (2003) (noting that, 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. 473, 484 (2000) (holding that, when relief is denied on 

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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. The Petition for Writ of Habeas Corpus [Doc. 1] is DISMISSED; 
2. The Petitioner’s Motion to Proceed In Forma Pauperis [Doc. 2] is 
DENIED; 
3. The Court DECLINES to issue a certificate of appealability pursuant 
to Rule 11(a) of the Rules Governing Section 2254 Cases; and 
4. The Clerk of Court is respectfully directed to terminate this action. 
 IT IS SO ORDERED. 
 
 
Signed: June 8, 2026 

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