Armistead v. Hooks

Full title: JAMES G. ARMISTEAD, Petitioner, v. ERIK A. HOOKS, Respondent.

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

Date published: Dec 13, 2018

1:18CV1006 (M.D.N.C. Dec. 13, 2018)

Opinion

1:18CV1006

12-13-2018

JAMES G. ARMISTEAD, Petitioner, v. ERIK A. HOOKS, Respondent.

L. Patrick Auld United States Magistrate Judge

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, submitted a document titled as a Motion under Rule 60(b) of the Federal Rules of Civil Procedure. Even though Petitioner has not used the correct forms for a habeas corpus petition under 28 U.S.C. § 2254, it appears that Petitioner seeks to attack his state court criminal conviction. The document he filed is not a recognizable method for achieving this goal. Instead, the proper avenue for such an attack is ordinarily a petition for habeas corpus. For this reason, the Court will construe the submission as a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody. 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 did not use the required § 2254 Forms. Rule 2, R. Gov. § 2254 Cases.

3. Petitioner appears to challenge the results of a habeas proceeding that took place in the Eastern District of North Carolina. This Court cannot review or change the decisions of that court. If Petitioner wishes to pursue what he

believes was an error that occurred in the Eastern District, he must make any appropriate filings in that court.

Because of these pleading failures, the Petition will be filed and then dismissed, without prejudice to Petitioner making any further appropriate filings in the Eastern District of North Carolina.

In forma pauperis status will be granted for the sole purpose of entering this Order and Recommendation of dismissal with permission to make new filings correcting the defects of the present Petition.

IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.

IT IS RECOMMENDED that this action be construed as a habeas petition under 28 U.S.C. § 2254 and dismissed sua sponte without prejudice to Petitioner making any appropriate filings in the Eastern District of North Carolina.

This, the 13th day of December, 2018.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge