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Taylor v. Perry

United States District Court, M.D. North Carolina

June 2, 2014

CALVIN TAYLOR, Petitioner,
v.
FRANK PERRY, Respondent.

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JOE L. WEBSTER, Magistrate Judge.

Petitioner, a prisoner of the State of North Carolina, submitted a letter addressed to a Judge in this Court. In the letter, it appears that Petitioner seeks to attack state court contempt convictions. The document he filed is not are cognizable method for achieving this goal. Instead, the proper avenue for such an attack is ordinarily a petition for habeas corpus For this reason, the Court will construe the submission as a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody. For the following reasons, the Petition cannot be further processed.

1. Petitioner has not used the required § 2254 Forms. Rule 2, R. Gov. § 2254 Cases. The Clerk will forward to Petitioner the proper forms.
2 The filing fee was not received, nor was an affidavit to proceed in forma pauperis submitted and signed by Petitioner.
3. It is not entirely clear, but Petitioner may be attacking the calculation of his sentence rather than of attacking convictions. If so, he must instead file a petition under 28 U.S.C. 2241 in the District where he is incarcerated.

Because of these pleading failures, the Petition will 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.[1] 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 in forma pauperis, new § 2254 forms, and instructions for filing a § 2254 petition, which Petitioner should follow if he intends to challenge state court convictions. If Petitioner wishes instead to challenge the calculation of his sentence under § 2241, he should request the proper forms for such a filing in the District where he is incarcerated. It appears that Petitioner is incarcerated in the Eastern District of North Carolina. The address for the Clerk's Office in that District is: 310 New Bern Ave., Room 574, Raleigh, NC 27601.

In forma paupers 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 § 2254 forms, instructions, and a current application to proceed in forma pauperis, which he should use only if he wishes to attack state court convictions or sentences and not the calculation of his sentence.

IT IS RECOMMENDED that this action be construed as a habeas petition under 28 U.S.C. 52254 and dismissed sua sponte without prejudice to Petitioner filing a new petition under § 2254 or § 2241 which corrects the defects of the current Petition and is filed in the proper district. The new petition must be accompanied by either the five dollar filing fee or a current application to proceed in forma pauperis.


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