Opinion
1:20CV981
12-01-2020
ANTONIO MOSS BEY, Petitioner, v. KEITH STONE, Respondent.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE 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. 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.
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.
The Court also notes that under 28 U.S.C. § 2241(d), “[w]here an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him.” See also Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 497 (1973). In this case, it appears that Petitioner is presently in custody in Nash County, North Carolina, in the Eastern District of North Carolina, and Petitioner was also convicted and sentenced in the state court in Nash County. If so, Petitioner should seek the proper forms from the Clerk of the Eastern District of North Carolina for filing in that district. The address for the Clerk is: 310 New Bern Ave., Room 574, Raleigh, NC 27601.
If Petitioner files a § 2254 Petition in this District on the proper forms and with the filing fee or request to proceed in forma pauperis, he should also address whether the case should be transferred to the Eastern District of North Carolina in accordance with § 2241(d), 28 U.S.C. § 1406(a), and the Joint Order of the United States District Courts for the Eastern, Middle, and Western Districts of North Carolina.
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.
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.