ROGERS v. KELLER

Filing 2

ORDER AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10-18-2010. 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 return Petitioner's $5 filing fee and 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 spontewithout prejudice to Petitioner filing a new petition once he has exhausted his claims in state court. Re 1 Petition for Writ of Habeas Corpus filed by KENNETH DILVERN ROGERS (Taylor, Abby)

-LPA ROGERS v. KELLER

Doc. 2

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA KENNETH DILVERN ROGERS, ) ) Petitioner, ) ) ) ) ) ) Respondent. )

v. ALVIN KELLER,

1:10CV776

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Petitioner, a prisoner of the State of North Carolina, has submitted a Petition under 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody, together with the $5 filing fee. For the following reasons, the Petition cannot be further processed. 1. Petitioner has failed to indicate that state court remedies have been exhausted as to the claims he raises. [28 U.S.C. § 2254(b).] In fact, he explicitly indicates that he still has a direct appeal and attempt at collateral review pending in the state courts. He must fully exhaust his claims in state court before bringing them in this Court.

Because of this pleading failure, this particular 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, once he has exhausted his state court remedies. The Court has no authority to toll the statute of limitation. Therefore, Petitioner must act quickly if he wishes to pursue a petition once his direct appeal and other state court proceedings conclude. See Spencer v. Sutton, 239 F.3d

Dockets.Justia.com

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. The Clerk should also return Petitioner's $5 filing fee. 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 return Petitioner's $5 filing fee and 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 once he has exhausted his claims in state court.

/s/ L. Patrick Auld L. Patrick Auld United States Magistrate Judge October 18, 2010

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