Opinion
1:23CV804
10-04-2023
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
Joe L. Webster United States Magistrate Judge
Petitioner, a state prisoner, previously submitted a Letter stating that the State of North Carolina violated his rights regarding his prison sentences. In case 1:23CV624, the Court treated that Letter as a petition under 28 U.S.C. § 2254 out of an abundance of caution, but then dismissed it as a second or successive petition that Petitioner needed to obtain authorization from the United States Court of Appeals for the Fourth Circuit to file. The Court also granted in forma pauperis status for the sole purpose of entering the prior Recommendation and Order.
Petitioner has now filed a Petition using the proper form for filing under § 2254. He also submitted a letter stating that the Court previously granted in forma pauperis status and that he is attaching the required authorization to file his Petition. In fact, as stated above, the Court did not grant in forma pauperis status generally, but only for the entry of the prior Recommendation and Order. More significantly, the order from the Fourth Circuit attached by Petitioner does not grant authorization for him to file a successive petition. It instead denies the authorization. Therefore, he cannot file his current Petition and it should be dismissed without prejudice to him filing it in the future if he is able to receive authorization. In forma pauperis status will again be granted only for the purposes of entering this Recommendation and Order.
IT IS THEREFORE RECOMMENDED that the Petition be dismissed for failure to receive an order from the United States Court of Appeals for the Fourth Circuit authorizing this district court to consider the current Petition as is required by 28 U.S.C. § 2244.
IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole purpose of entering this Recommendation and Order.
IT IS FURTHER ORDERED that the Clerk shall send Petitioner a copy of this Recommendation and Order, instruction forms for filing § 2254 petitions in this Court and for filing a Motion for Authorization in the United States Court of Appeals for the Fourth Circuit, an application to proceed in forma pauperis (upon request), and four copies of § 2254 petition forms (more copies will be sent on request). Petitioner should keep the original and two copies of the § 2254 petition which can be submitted in this Court if Petitioner obtains approval from the Fourth Circuit.