CANNADY v. KELLER

Filing 2

ORDER AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 05/27/2011. 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 corrects the defects of the current petition.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TRAVIS M. CANNADY,

)
)
Petitioner, )
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v.
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)
ALVIN W. KELLER, JR.,
)
)
Respondent. )

1:11CV424

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 a writ of habeas corpus by a person in state custody. For the following
reasons, the Petition cannot be further processed.
1.

Filing fee was not received, nor was an affidavit to proceed in forma pauperis
submitted and signed by Petitioner.

2.

Petitioner has failed to indicate that state court remedies have been exhausted.
[28 U.S.C. § 2254(b).] In fact, he appears to affirmatively indicate that he has
not attempted to exhaust his state court remedies. (Docket Entry 1, §12,
Ground One (b).)

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, once he has
exhausted his state court remedies. 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 the 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 once he has exhausted his state court remedies.
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 corrects the defects of the current
petition.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
May 27, 2011

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