SIMMONS v. NORTH CAROLINA DEPARTMENT OF CORRECTIONS

Filing 4

ORDER AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/15/2011. 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 FURTHER ORDERED that Petitioner's request for counsel (Docket Entry 3 ) is denied. 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

EARNEST JOSEPH SIMMONS,

v.
NORTH CAROLINA
DEPARTMENT OF
CORRECTIONS,

)
)
Petitioner, )
)
)
)
)
)
)
)
Respondent. )

1:11CV636

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, together with an
application to proceed in forma pauperis . For the following reasons, the Petition cannot be
further processed.
1.

Petitioner indicates that he has not exhausted his state court remedies as to
three of his four claims. The Court cannot grant relief on habeas claims unless
state court remedies have been exhausted. 28 U.S.C. § 2254(b). Petitioner
should either exhaust his remedies as to all of his claims or file only exhausted
claims in his Petition.

2.

Petitioner has not named his custodian as the respondent. Rule 2, Rules
Governing Section 2254 Cases, requires that the petition name the state officer
having custody of the applicant as respondent. The Court takes judicial notice
that a proper respondent for North Carolina state prisoners challenging their
North Carolina judgment of conviction is the Secretary of the North Carolina
Department of Correction. Naming the wrong custodian is a common point of
confusion, and the Court assumes that Petitioner wishes to name the proper
custodian as respondent. Accordingly, unless Petitioner objects within eleven

days of the issuance of this Order, the Petition is deemed from this point
forward to be amended to name Alvin W. Keller, Jr., who is currently the
Secretary of the North Carolina Department of Correction, as respondent.
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. Petitioner has also filed a motion requesting counsel. Given the
recommendation of dismissal, that motion will be denied.
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 FURTHER ORDERED that Petitioner’s request for counsel (Docket Entry
3) is denied.

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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
August 15, 2011

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