Opinion
1:13CV1065
12-05-2013
CHRISTOPHER O'NEAL PATTERSON-BEY, Petitioner, v. NORTH CAROLINA 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. Filing fee was not received, nor was a proper affidavit to proceed in forma pauperis submitted and signed by Petitioner. Petitioner submitted an in forma pauperis application, but did not provide, as required, the amount of deposits into his inmate trust account during the last six months or the present balance of that account.
2. Petitioner indicates that state court remedies have not been exhausted as required by 28 U.S.C. § 2254(b). As Petitioner was previously informed in association with an earlier filing, 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 See Lassiter v. Lewis, No. 5:11HC2082D, 2012 WL 1965434, at *4-5 (E.D.N.C. May 31, 2012) (unpublished) (citing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). Petitioner must exhaust his state court remedies.
3. Petitioner's claims for relief appear to be more in the nature of statements and/or questions regarding issues of race, nationality, and the Thirteenth Amendment to the United States Constitution than they are claims that Petitioner's constitutional rights were violated during his criminal prosecution. As Petitioner has been previously informed, he must raise proper claims for relief and not simply make statements and ask questions. He should also be aware that if his argument is that he cannot be prosecuted for criminal offenses because of his race or nationality, that argument is frivolous.
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. The Court has no authority to toll the statute of limitation, therefore it continues to run, and Petitioner must act quickly if he wishes to pursue this petition. See Spencer v. Sutton, 239 F.3d 626 (4th Cir. 2001). 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.
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Joe L. Webster
United States Magistrate Judge