PULLEY v. SMITH

Filing 2

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 04/09/2013, that the Petition be dismissed for failure to apply to the United States Court of Appeals for the Fourth Circuit for an order authorizing t his district court to consider the current Petition as is required by 28 U.S.C. § 2244. ORDERED that in forma pauperis status is granted for the sole purpose of entering this Recommendation and Order. FURTHER that the Clerk shal l send Petitioner a copy of this Recommendation and Order, instruction forms for filing § 2254 petitions in this Court and for filing a Motion for Authorization in the United States Court of Appeals for the Fourth Circuit, an application to p roceed in forma pauperis, and four copies of § 2254 petition forms (more copies will be sent on request). Petitioner should keep the original and two copies of the § 2254 petition which can be submitted in this Court if Petitioner obtains approval from the Fourth Circuit. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA LARRY MCLEOD PULLEY, Petitioner, v. LEWIS SMITH, Respondent. ) ) ) ) ) ) ) ) ) 1:13CV229 RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE Petitioner, a state prisoner, has submitted a petition for writ of habeas corpus, apparently pursuant to 28 U.S.C. § 2254. This Petition cannot be further processed because court records reveal that Petitioner has already attacked the same conviction and sentence in a previous § 2254 petition [1:02CR281]. Consequently, Petitioner must apply to the United States Court of Appeals for the Fourth Circuit for an order authorizing this Court to consider the current Petition, as required by 28 U.S.C. § 2244(b)(3)(A). Because of this pleading failure, the Petition should be dismissed. In forma pauperis status will be granted for the sole purpose of entering this Recommendation and Order. IT IS THEREFORE RECOMMENDED that the Petition be dismissed for failure to apply to the United States Court of Appeals for the Fourth Circuit for an order authorizing this district court to consider the current Petition as is required by 28 U.S.C. § 2244. IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole purpose of entering this Recommendation and Order. IT IS FURTHER ORDERED that the Clerk shall send Petitioner a copy of this Recommendation and Order, instruction forms for filing § 2254 petitions in this Court and for filing a Motion for Authorization in the United States Court of Appeals for the Fourth Circuit, an application to proceed in forma pauperis, and four copies of § 2254 petition forms (more copies will be sent on request). Petitioner should keep the original and two copies of the § 2254 petition which can be submitted in this Court if Petitioner obtains approval from the Fourth Circuit. This, the 9th day of April, 2013. /s/ L. Patrick Auld L. Patrick Auld United States Magistrate Judge -2-