Opinion
1:23CV772
09-25-2023
JAHMIZE N. ALLEN, Petitioner, v. PERSON COUNTY SHERIFF OFFICE Respondent.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Joe L. Webster United States Magistrate Judge
Petitioner, a prisoner of the State of North Carolina, submitted a petition under 28 U.S.C. § 2241. For the following reasons, the Petition cannot be further processed.
1. The filing fee was not received, nor was an affidavit to proceed in forma pauperis submitted and signed by Petitioner.
2. Petitioner seeks intervention by this Court in ongoing state criminal proceedings. Such intervention can only occur in instances of bad faith, irreparable injury beyond the burden of defending the criminal action, or a lack of available state court remedies. See Younger v. Harris, 401 U.S. 37 (1971); Gilliam v. Foster, 75 F.3d 881, 904-905 (4th Cir. 1996). Petitioner does not currently set out facts sufficient to meet this standard. Further, Petitioner indicates that he did not seek relief by raising his claims in the state courts. Petitioner must exhaust his state court remedies as to any claims he seeks to raise in this Court. Such exhaustion is required under § 2241 just as it is for filing a petition under 28 U.S.C. § 2254. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489-92 (1973). Unless Petitioner exhausts his remedies and can meet the requirements set out above, he should litigate any issues he seeks to raise in his state court criminal case. He cannot simply try his case in this Court.
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. To further aid Petitioner, the Clerk is instructed to send Petitioner a new application to proceed in forma pauperis, new § 2241 forms, and instructions for filing a § 2241 petition, which Petitioner should follow.
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 § 2241 forms, instructions, and a current application to proceed In forma pauperis.
IT IS RECOMMENDED that this action be dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects the defects of the current Petition.