govinfo:USCOURTS-ncwd-1_26-cv-00030-0

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

 
REY CERVANTES LOPEZ, ) 
 ) 
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 Rey Cervantes 
Lopez (herein “Petitioner”) on January 28, 2026. [Doc. 1]. 
I. BACKGROUND 
 The Petitioner is a prisoner of the State of North Carolina. 1 The 
Petitioner was convicted November 27, 2023, in Buncombe County Superior 
Court of four drug offenses: one count of Trafficking in Schedule I Controlled 
Substances, one count of Trafficking in Schedule II Controlled Substances, 
one count of Possession with Intent to Sell and Deliver Schedule IV 
 
1 See https://webapps.doc.state.nc.us/opi/viewoffender.do?method=view&offenderID= 
1103412&searchOffenderId=1103412&searchDOBRange=0&listurl=pagelistoffendersea
rchresults&listpage=1(herein “NCDAC Database”); Fed. R. Evid. 201. 

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Controlled Substances, and one count of Maintaining a Place for Controlled 
Substances. [NCDAC Database]. The trial court consolidated into one 
judgment the Petitioner’s convictions for Trafficking in Schedule II Controlled 
Substances and Maintaining a Place for Controlled Substances and imposed 
an active sentence of 70 to 93 months imprisonment. The trial court 
consolidated into a second judgment the Petitioner’s convictions for 
Trafficking in Schedule I Controlled Substances and Possession with Intent 
to Sell and Deliver Schedule IV Controlled Substances and imposed a 
consecutive active sentence of 90 to 120 months imprisonment. [ Id.]. 
Petitioner’s projected release date from imprisonment is April 28, 2038. [Id.]. 
 After the Petitioner sustained his state court convictions, no direct 
appeal was filed. As for any post-conviction proceedings, the Petitioner filed 
only a petition for writ of habeas corpus in the North Carolina Supreme Court 
on November 20, 2025, which was denied by that court the following day. 
Lopez v. Dismukes, Docket No. 338P25 (N.C. Nov. 21, 2025). 
 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 and was factually deficient . 
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 

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document explaining why his § 2254 petition should not be dismissed as 
untimely and to cure the factual deficiencies. [Doc. 2]. The Court warned the 
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 
 

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(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 was convicted of his state offenses November 27, 2023. 
Since no direct appeal was filed, and since Petitioner ha s not asserted any 
grounds listed in § 2244(d)(1)(B) through § 2244(d)(1)(D) in his petition, the 
Petitioner’s state court judgments became final at the expiration of the time 
for filing a notice of appeal seeking direct review of t hem, 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 app eal 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 December 11 , 202 3, fourteen 
days after the entry of his state judgment s. The limitations period ran from 
that date until December 1 0, 202 4, when the period for the Petitioner to 
commence this action expired. 28 U.S.C. § 2244(d)(1)(A). The present 
action, commenced January 28 , 2026, is filed over one year 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 

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applicable AEDAP limitations period or what good cause exists to excuse his 
non-compliance. The only explanation the Petitioner gives , in response to 
Question 18 of his petition , are the two words, “new facts.” [Doc. 1 at 13]. 
The Petitioner gives no explanation as to what these “new facts” may be, or 
how and when he came into possession of these “new facts,” or how these 
“new facts” establish the timely filing of his § 2254 petition. Accordingly, the 
Petitioner has failed to put forth any evidence or argu ment 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.2 
III. CONCLUSION 
For the foregoing reasons, the § 2254 petition filed in this action shall 
be dismissed. 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, 4 84 (2000) (holding 
 
2 Because the Court is dismissing the § 2254 petition as having been filed outside of the 
applicable AEDPA limitations period, it is without jurisdiction to consider whether the 
petition is factually deficient, as first noted in its May 13, 2026, Order. [Doc. 2 at 4-5]. 

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that, 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. The Petition for Writ of Habeas Corpus [Doc. 1] is DISMISSED;
2. The Court DECLINES to issue a certificate of appealability pursuant
to Rule 11(a) of the Rules Governing Section 2254 Cases; and
3. The Clerk of Court is respectfully directed to terminate this action.
IT IS SO ORDERED. 
Signed: 6/8/2026

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