United States District Court, Middle District of North Carolina
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Joe L. Webster United States Magistrate 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 an affidavit to proceed in forma pauperis submitted and signed by Petitioner.
2. Petitioner does not appear to state any viable claim for relief. Under 2 8 U.S.C. §§ 2241(c)(3) and 2254(a) the federal courts have jurisdiction to entertain applications for habeas corpus only if the petitioner is "in custody." The custody requirement of § 2254 is not met when the prisoner is challenging an expired state sentence, even if the expired sentence enhances a current sentence. See Maleng v. Cook. 490 U.S. 488, 492 (1989). Here, Petitioner challenges two convictions from 1985 for which he received sentences of four and six years. Those sentences likely expired decades ago. Unless Petitioner can show otherwise, his claim would be dismissed.
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 ...