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El Bey v. State

United States District Court, M.D. North Carolina

December 24, 2014

DERRICK JAVON LINDSEY EL BEY, Petitioner,
v.
STATE OF NORTH CAROLINA[1], Respondent.

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L. PATRICK AULD, District Judge.

Petitioner, a prisoner of the State of North Carolina, submitted 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. The filing fee was not received nor was a proper affidavit to proceed in forma pauperis submitted, with sufficient information completed or signed by Plaintiff, to permit review.
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 See Lassiter v. Lewis, No. 5:11HC2082D , 2012 WL 1965434, at *4-5 (E.D. N.C. May 31, 2012) (unpublished) (citing O'Sullivan v. Boerckel , 526 U.S. 838, 845 (1999), and N.C. Gen.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). Plaintiff mentions an MAR, but it is not clear whether the trial court ruled on the MAR or whether Plaintiff sought certiorari from the North Carolina Court of Appeals.

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.

After filing his Petition, Petitioner also filed a series of Motions (Docket Entries 2 through 8) seeking an entry of default judgment because the State did not respond to his Petition, discovery, a hearing on his petition, and judgment as a matter of law. The State did not respond to the Petition because the Court did not order a response, meaning that no response was due, much less past due. As for discovery, a hearing, and judgment as a matter of law, these are not appropriate given the recommended dismissal of the case as set out above. Therefore, all of Petitioner's pending Motions will be denied.

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 FURTHER ORDERED that Petitioner's Motions seeking a default judgment, discovery, and a hearing (Docket Entries 2 through 8) are DENIED.

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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