Opinion
1:23CV887
12-22-2023
CHRISTOPHER MOSBY, Petitioner, v. NORTH CAROLINA, et al., Respondent.
RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE
Joe L. Webster United States Magistrate Judge
Petitioner, a prisoner of the State of North Carolina, submitted a habeas corpus petition under 28 U.S.C. § 2254 together with the five-dollar filing fee. This Petition cannot be further processed because court records reveal that Petitioner already attacked the same conviction and sentence in a previous § 2254 petition [1:99CV834]. 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. Although Petitioner includes a completed form requesting authorization with his current filing, he does not claim that he actually received authorization to file a successive Petition. He must receive that authorization before filing. 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 and the Clerk will return the filing fee to Petitioner.
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 and that, there being no substantial issue for appeal concerning the denial of a constitutional right affecting the conviction nor a debatable procedural ruling, a certificate of appealability not issue.
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 return the five-dollar filing fee to Petitioner and 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.