Abundez v. North Carolina

Full title: JOSE J. ABUNDEZ, Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

Court: UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

Date published: May 18, 2015

1:15CV62 (M.D.N.C. May. 18, 2015)

Opinion

1:15CV62

05-18-2015

JOSE J. ABUNDEZ, Petitioner, v. STATE OF NORTH CAROLINA, Respondent.

Joi Elizabeth Peake United States Magistrate Judge

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, submitted a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody, together with an application to proceed in forma pauperis. For the following reasons, the Petition cannot be further processed.

1. The filing fee was not received, nor was a sufficient affidavit to proceed in forma pauperis submitted and signed by Petitioner. Petitioner submitted an in forma pauperis application, but it does not contain the amount of deposits into his prison trust account in the last six months. The Court needs this information in order to process the application.



2. Petitioner has not used the required § 2254 Forms. Rule 2, R. Gov. § 2254 Cases. The Clerk will forward to Petitioner the proper forms.

Because of these pleading failures, the Petition should be filed and then dismissed, without prejudice to Petitioner filing a new petition on the proper habeas corpus forms with the $5.00 filing fee, or a completed application to proceed in forma pauperis, and otherwise correcting the defects noted.² To further aid Petitioner, the Clerk is instructed to send Petitioner a new application to proceed in forma pauperis, new § 2254 forms, and instructions for filing a § 2254 petition, which Petitioner should follow.

2 To the extent there are any issues regarding the running of the statute of limitations in this case, the parties can litigate those issues following any refiling by Petitioner.
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In forma pauperis status will be granted for the sole purpose of entering this Order and Recommendation.

IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. The Clerk is instructed to send Petitioner § 2254 forms, instructions, and a current application to proceed in forma pauperis.

IT IS RECOMMENDED that this action be filed, but then dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects the defects of the current Petition.

This, the 18^th day of May, 2015.

/s/ Joi Elizabeth Peake

United States Magistrate Judge