Opinion
1:24CV148
04-29-2024
BRANSON LAMBERT, Petitioner, v. RANDOLPH COUNTY COURT, Respondent.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
JOI ELIZABETH PEAKE, UNITED STATES MAGISTRATE JUDGE.
Petitioner, a detainee in Randolph County, North Carolina, submitted a letter in which he seeks to have this Court intervene in his ongoing state criminal matter to force a change of venue. Even though Petitioner has not used the correct forms for a habeas corpus petition under 28 U.S.C. § 2241 the nature of his claims would be proper, if at all, under that statute. Therefore, the Court will construe the submission as a petition under 28 U.S.C. § 2241 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 § 2241 Forms. The Clerk will forward to Petitioner the proper forms.
Because of these pleading failures, the Petition will be filed and then dismissed, without prejudice to Petitioner filing a new petition on the proper forms with the $5.00 filing fee, or a completed application to proceed in forma pauperis, and otherwise correcting the defects noted. To further aid Petitioner, the Clerk is instructed to send Petitioner a new application to proceed in forma pauperis, new § 2241 forms, and instructions for filing a § 2241 petition, which Petitioner should follow. Also, as the Court has told Petitioner in the past, federal courts typically abstain from this type of intervention in state criminal proceedings. To avoid abstention, a plaintiff must demonstrate that the state courts will not afford an adequate remedy and that irreparable injury will occur without equitable relief. Middlesex Cnty Ethics Comm. v. Garden State Bar Ass'n, 457 U.S. 423 (1982). Intervention can only occur in instances of bad faith, irreparable injury beyond the burden of defending the criminal action, or a lack of available state court remedies. See Younger v. Harris, 401 U.S. 37 (1971); Gilliam v. Foster, 75 F.3d 881, 904905 (4th Cir. 1996). Finally, Petitioner must exhaust his state court remedies as to the claims he raises. Such exhaustion is required under § 2241 just as it is for filing a petition under 28 U.S.C. § 2254. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 489-92 (1973).
In forma pauperis status will be granted for the sole purpose of entering this Order and Recommendation of dismissal with permission to file a new petition which corrects the defects of the present Petition.
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 send Petitioner § 2241 forms, instructions, and a current application to proceed in pauperis.
IT IS RECOMMENDED that this action be construed as a habeas petition under 28 U.S.C. § 2241 and dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects the defects of the current Petition after Petitioner exhausts all state court remedies. The new petition must be accompanied by either the five-dollar filing fee or a current application to proceed In forma pauperis.