United States District Court, W.D. North Carolina, Asheville Division
FRANK D. WHITNEY, Chief District Judge.
THIS MATTER is before the Court upon Petitioner Fredi Magallan Arciga's Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1). Also before the Court is Petitioner's Amended Motion to Proceed In Forma Pauperis ("IFP") (Doc. No. 4).
According to his habeas petition, Petitioner pled guilty on June 8, 2010 in McDowell County Superior Court to one count of second degree sexual offense and one count of felonious restraint. Pet. 1-2, ECF No. 1. Judgment was entered on March 30, 2011. Pet., supra, at 1. Petitioner does not indicate anywhere in his petition whether he filed a direct appeal or a petition for discretionary review of his convictions and sentence in the North Carolina appellate courts. Petitioner also does not state whether he sought post-conviction relief by way of a Motion for Appropriate Relief ("MAR") in the McDowell County Superior Court. He does acknowledge, however, that none of the grounds for relief cited in his petition were raised previously in the state courts. Pet., supra, at 5-6, 8, 10, 11.
The instant habeas petition shows that Petitioner signed and placed the petition in the Morrison Correctional Institution mailbox on January 22, 2015. Pet., supra, at 16. It was received and docketed in federal district court on January 27, 2015. Petitioner also filed a handwritten copy of the standard federal "Application to Proceed in District Court Without Prepaying Fees or Costs, " AO Form 239 (Rev. 12/13), which he did not sign. IFP Mot. 4, ECF No. 2. Petitioner, moreover, failed to answer the majority of the questions in the application.
An initial review of the habeas petition indicated that it was untimely. In an order entered on February 2, 2015, Petitioner was directed to file an amended IFP application, a certified copy of his trust fund account statement for the 6-month period immediately preceding the filing of the complaint, and an explanation for the untimeliness of his § 2254 habeas petition, including any reasons why equitable tolling should apply. Order 4, ECF No. 3 (citing Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002)).
On February 13, 2015, Petitioner filed a signed copy of his original IFP application, leaving the same questions unanswered. Am. IFP Mot. (Doc. No. 4). Additionally, he filed an uncertified copy of his trust fund account statement for the week prior (Feb. 2-9, 2015). (Doc. No. 5). Finally, he filed a four-page document written entirely in Spanish. (Doc. No. 4-1).
II. STANDARD OF REVIEW
The Court is guided by Rule 4 of the Rules Governing Section 2254 Cases, which directs district courts to examine habeas petitions promptly. Rule 4, 28 U.S.C.A. foll. § 2254. When it plainly appears from any such petition and any attached exhibits that the petitioner is not entitled to relief, the reviewing court must dismiss the motion. Id.
A. Motion To Proceed In Forma Pauperis
The Court first considers Petitioner's amended IFP Motion (Doc. No. 4). Federal law requires that a petitioner seeking habeas review of his state conviction and/or sentence in federal district court pay a filing fee in the amount of $5.00 or be granted leave by the court to proceed without prepayment of fees and costs because the petitioner is indigent. The petitioner must provide the court with an affidavit of indigency, usually a completed "Application to Proceed in District Court Without Prepaying Fees or Costs, " which is available to most state and federal inmates.
Furthermore, pursuant to 28 U.S.C. § 1915(a)(2), a prisoner seeking to proceed in a § 2254 action without prepayment of fees "shall submit a certified copy of the trust fund account statement (or the institutional equivalent) for the prisoner for the 6-month period immediately preceding the filing of the complaint." The provisions of 28 U.S.C. § 1915(a)(2) are mandatory.
Petitioner has provided neither a completed affidavit of indigency nor the required trust fund account statement for the 6-month period immediately preceding the filing of his § 2254 habeas petition. Consequently, this Court has no information regarding Petitioner's asserted ...