Opinion
1:23CV15
01-11-2023
SHAMIR OMARIE CRUZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
L. Patrick Auld, United States Magistrate Judge
Petitioner, a federal prisoner, submitted a petition under 28 U.S.C. § 2241 for a writ of habeas corpus, together with the five-dollar filing fee. For the following reason, the Petition cannot be further processed.
1. Petitioner seeks to attack a criminal case in this Court, 1:22CR220-1, in which he pled guilty and is facing sentencing. He raises claims that could be raised in motions in the pending case, on direct appeal, or, if those avenues fail, in a post-conviction motion under 28 U.S.C. § 2255. His current filing is premature and improper. See Habersham v. U.S. Marshal Task Force, Civil Action No. 1:29-1981-BHH, 2019 WL 4575392, at *2 (D.S.C. Aug. 19, 2019) (unpublished), report and rec. adopted, 2019 WL 4573420 (D.S.C. Sep. 20, 2019) (unpublished).
Because of this pleading failure, the Petition should be filed and then dismissed, without prejudice to Petitioner raising any claims challenging the conviction in 1:22CR220-1 in that case or on direct appeal. The Clerk is instructed to return the five-dollar filing fee to Petitioner.
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 return the five-dollar filing fee to Petitioner.
IT IS RECOMMENDED that this action be filed, but then dismissed sua sponte without prejudice to Petitioner raising any claims challenging the convictions in 1:22CR220-1 in that case or on direct appeal.