United States District Court, W.D. North Carolina, Charlotte Division
MAURICE L. STROUD, Petitioner,
ERIK HOOKS,  Respondent.
D. Whitney Chief United States District Judge
MATTER is before the Court upon initial review of Petitioner
Maurice L. Stroud's pro se Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254. (Doc. No. 1.) Also
before the Court is Petitioner's Motion to Proceed In
Forma Pauperis. (Doc. No. 2.)
September 16, 2004, Petitioner pled guilty in Mecklenburg
County Superior Court to second degree murder, second degree
kidnapping, and robbery with a dangerous weapon. (Pet. 1,
Doc. No. 1.) He was sentenced pursuant to a plea agreement to
consecutive sentences of 251-311 months for second degree
murder, 133-169 months for second degree kidnapping, and
117-150 months for robbery with a dangerous
did not file a direct appeal. On February 5, 2007, he filed a
Motion for Appropriate Relief (“MAR”) in the
Mecklenburg County Superior Court. It was denied on May 24,
August 20, 2008, Petitioner filed a petition for writ of
certiorari in the North Carolina Court of Appeals, seeking
review of the denial of his MAR. It was denied on August 29,
2008. On May 19, 2015, Petitioner filed another petition for
writ of certiorari in the North Carolina Court of Appeals,
which was dismissed on May 28, 2015. On July 14, 2015,
Petitioner filed a third certiorari petition with the North
Carolina Court of Appeals. Petitioner indicates this
certiorari petition also was denied, but he does not provide
the date on which it was denied.
filed a Petition for Writ of Habeas Corpus pursuant to 28
U.S.C. § 2254 in this Court on December 11, 2015.
Stroud v. Albermarle Correctional, 3:15-cv-00608-FDW
(W.D. N.C. ), Doc, No. 1. It was dismissed as untimely on
August 25, 2016. Id. at Doc. No. 6. His appeal was
dismissed by the Fourth Circuit Court of Appeals for failure
to prosecute. Id. at Doc. No. 11.
September 19, 2016, Petitioner filed a second § 2254
habeas Petition in this Court. Stroud v. Clelland,
3:16-cv-00677-FDW (W.D. N.C. ), Doc. No. 1. When Petitioner
failed, after two deficiency notices, to pay the $5.00 filing
fee or file a motion to proceed in forma pauperis, the Court
dismissed the Petition without prejudice. Id. at
Doc. No. 3. Petitioner's appeal of that matter is pending
in the Fourth Circuit.
March 30, 2017, the Clerk of Court's Office received the
instant § 2254 habeas Petition. (Doc. No. 1.) As in his
previous habeas petitions, Petitioner challenges his
September 16, 2004 judgments.
STANDARD OF REVIEW
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.
Antiterrorism and Effective Death Penalty Act of 1996
provides for an express limitation on a petitioner's
ability to attack his criminal judgment in a subsequent
collateral proceeding. Pursuant to 28 U.S.C. §
2244(b)(3)(A), “[b]efore a second or successive
application permitted by this section is filed in the
district court, the applicant shall move in the appropriate
court of appeals for an order authorizing the district court
to consider the application.” On March 13, 2017,
Petitioner filed a motion in the Fourth Circuit Court of
Appeals for authorization to file a successive application
for post-conviction relief. In re: Maurice L.
Stroud, No. 17-167 (4th Cir.), Doc. No. 1. The motion
was denied on April 4, 2017. (4th Cir. Order Den. Mot., Doc.
the Fourth Circuit has denied Petitioner permission to file a
successive § 2254 petition, this Court does not have
jurisdiction to consider the instant habeas Petition. See
Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding
that failure of petitioner to obtain authorization to file a
“second or successive” petition deprived the
district court of jurisdiction to consider the second or
successive petition “in the first place”);
United States v. Winestock, 340 F.3d 200, 205 (4th
Cir. 2003) (“In the absence of ...