Miller v. Perry

Full title: EUGENE TYRONE MILLER, Petitioner, v. FRANK PERRY, Respondent.

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

Date published: Oct 13, 2015

1:15CV835 (M.D.N.C. Oct. 13, 2015)

Opinion

1:15CV835

10-13-2015

EUGENE TYRONE MILLER, Petitioner, v. FRANK PERRY, Respondent.

L. Patrick Auld United States Magistrate Judge

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a state prisoner, submitted a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. This Petition cannot be further processed because court records reveal that Petitioner already attacked the same conviction and sentence in a previous § 2254 petition [1:04CR545]. Consequently, Petitioner must apply to the United States Court of Appeals for the Fourth Circuit for an order authorizing this Court to consider the current Petition, as required by 28 U.S.C. § 2244(b)(3)(A). This Court cannot consider the Petition unless that authorization first issues. Petitioner does not claim that he received authorization to file a successive Petition. Because of this pleading failure, the Petition should be dismissed. In forma pauperis status will be granted for the sole purpose of entering this Recommendation and Order.

IT IS THEREFORE RECOMMENDED that the Petition be dismissed for failure to apply to the United States Court of Appeals for the Fourth Circuit for an order 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.

This, the 13th day of October, 2015.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge