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McCombs v. Perry

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Jun 13, 2014
1:14CV262 (M.D.N.C. Jun. 13, 2014)

Opinion

1:14CV262

06-13-2014

JOHN S. MCCOMBS, IV, Petitioner, v. FRANK L. PERRY, 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 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 fails to indicate that state court remedies have 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 See Lassiter v. Lewis, No. 5:11HC2082D, 2012 WL 1965434, at *4-5 (E.D.N.C. May 31, 2012) (unpublished) (citing O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), and N.C. Gen.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). The Petition appears to indicate that Petitioner filed a direct appeal and filed a motion in the trial court, but that he did not pursue his appeal to the North Carolina Supreme Court or pursue the post-conviction motion with the North Carolina Court of Appeals. (Petition [Doc. #1], §§ 9, 11, 12(c) & (d).)

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. To further aid Petitioner, the Clerk is instructed 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 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.

Joi Elizabeth Peake

United States Magistrate Judge


Summaries of

McCombs v. Perry

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
Jun 13, 2014
1:14CV262 (M.D.N.C. Jun. 13, 2014)
Case details for

McCombs v. Perry

Case Details

Full title:JOHN S. MCCOMBS, IV, Petitioner, v. FRANK L. PERRY, Respondent.

Court:UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

Date published: Jun 13, 2014

Citations

1:14CV262 (M.D.N.C. Jun. 13, 2014)