Opinion
1:22CV497
09-21-2022
JORGE GALEAS-MENCHU, EL, JR., Petitioner, v. STATE OF NORTH CAROLINA, Respondent.
ORDER
This matter is before this court for review of the Order and Recommendation filed on July 5, 2022, by the Magistrate Judge in accordance with 28 U.S.C. § 636(b). (Doc. 2.) In the
Recommendation, the Magistrate Judge recommends that this action be construed as a habeas petition under 28 U.S.C. § 2254 and dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects the defects of the current Petition.
The Recommendation was served on the parties to this action on July 5, 2022. (Doc. 3.) Petitioner submitted various post Recommendation filings, including three Notices and one Affidavit (Docs. 4-7).
This court is required to “make a de novo determination of those portions of the [Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). This court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the [M]agistrate [J]udge. . . . [O]r recommit the matter to the [M]agistrate [J]udge with instructions.” Id.
This court has appropriately reviewed the Recommendation as well as Petitioner's post-recommendation filings, and has made a de novo determination which is in accord with the Magistrate Judge's Recommendation. This court therefore adopts the Recommendation.
IT IS THEREFORE ORDERED that the Magistrate Judge's Recommendation, (Doc. 2), is ADOPTED. IT IS FURTHER ORDERED that this action be construed as a habeas petition under 28 U.S.C. § 2254 and DISMISSED sua sponte without prejudice to Petitioner filing a new petition which corrects the defects of the current Petition. The new petition must be accompanied by either the five dollar filing fee or a current application to proceed in forma pauperis. Finding neither a substantial issue for appeal concerning the denial of a constitutional right affecting the conviction nor a debatable procedural ruling, a certificate of appealability is DENIED.
A Judgment dismissing this action will be entered contemporaneously with this Order.