Opinion
1:15CV651
08-12-2015
LANCE SAMUEL GRAVES, Petitioner, v. B.J. BARNES, Respondent.
ORDER AND RECOMMENDATION OF 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 and the $5.00 filing fee. For the following reasons, the Petition cannot be further processed.
1. Petitioner indicates that state court remedies have not been exhausted as required by 28 U.S.C. § 2254(b). This Court cannot grant relief unless state court remedies have been exhausted. Id. In North Carolina, a petitioner may satisfy the exhaustion requirement of § 2254 by raising his claim(s) in a direct appeal of his conviction and/or sentence to the North Carolina Court of Appeals followed by a petition to the Supreme Court of North Carolina for discretionary review, or by raising his claims in a Motion for Appropriate Relief ("MAR") and petitioning the North Carolina Court of Appeals for a writ of certiorari if the MAR is denied. See Lassiter v. Lewis, No. 5:11HC2082D, 2012 WL 1965434, at *4-5 (E.D.N.C. May 31, 2012) (unpublished) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), and N.C. Gen. Stat. §§ 7A-31, 15A-1422).
2. The Petition was not signed by Petitioner (at least one copy must bear an original signature). Rule 2(c), Rules Governing § 2254 Cases.
3. Petitioner does not appear to state any claim for relief. One of his claims involves the lack of federal permission to prosecute him.
However, Petitioner's convictions occurred in state and no federal permission is needed. Also, his claims rely heavily on civil, copyright, and contract law, which have no applicability in most criminal matters. Finally, Petitioner complains about the way his name was written or capitalized. This does not state any federal claim for relief.
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 has no authority to toll the statute of limitation, therefore it continues to run, and Petitioner must act quickly if he wishes to pursue this petition. See Spencer v. Sutton, 239 F.3d 626 (4th Cir. 2001). To further aid Petitioner, the Clerk is instructed to return Petitioner's $5.00 filing fee and to send Petitioner a new application to proceed in forma pauperis, new § 2254 forms, and instructions for filing a § 2254 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 return Petitioner's $5.00 filing fee and to send Petitioner § 2254 forms, instructions, and a current application to proceed in forma pauperis.
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.
This, the 12th day of August, 2015.
/s/_________
Joe L. Webster
United States Magistrate Judge