FELTON v. HALL

Filing 3

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE P. TREVOR SHARP on 01/10/2012. IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. IT IS FURTH ER ORDERED that the Clerk send Petitioner a copy of this Recommendation, instruction forms for filing 2254 actions in this Court and Motions for Authorization in the court of appeals, and four copies of 2254 forms (more copies will be sent on request ). Petitioner should keep the original and two copies of the completed 2254 forms which can be submitted in this Court if Petitioner obtains approval from the Fourth Circuit. IT IS THEREFORE RECOMMENDED that Petitioner's "Rule 60(b)" m otion be construed as an attempt by Petitioner to file a second or successive 2254 action. IT IS FURTHER RECOMMENDED that this action be dismissed due to Petitioner's failure to obtain certification from the Fourth Circuit as required by 28 U.S.C. § 2244 and Fourth Circuit Local Rule 22(d). (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DAVID FELTON,
Petitioner,
v.
JOSEPH HALL,
Respondent.

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1:11CV759

RECOMMENDATION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the state of North Carolina, has submitted a motion for
reconsideration pursuant to Fed. R. Civ. P. 60(b), along with an application to proceed in
forma pauperis. In the motion, Petitioner is attacking his conviction or sentence rather than
seeking to remedy a defect in the collateral review process or other non-merit aspect of the
ruling. The motion for reconsideration therefore must be construed as a habeas corpus
petition under 28 U.S.C. § 2254. See Gonzalez v. Crosby, 545 U.S. 524 (2005); United
States v. Winestock, 340 F.3d 200 (4th Cir. 2003). As such, Petitioner’s pleading is defective
because he has failed to file his claims on the proper § 2254 forms. See Rules Governing
Section 2254 Cases Rule 2(c).
There is no need to put Petitioner through the extra work of submitting his claims on
the proper forms, however, because Petitioner states in his motion that he has already

challenged this conviction in previous § 2254 actions during the 1970’s and early 1980’s.
Therefore, the present pleading should be dismissed for lack of jurisdiction because of
Petitioner’s failure to obtain permission from the Fourth Circuit for a second or successive
§ 2254, as is required by 28 U.S.C. § 2244. See Winestock, 340 F.3d at 200.
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.
IT IS FURTHER ORDERED that the Clerk send Petitioner a copy of this
Recommendation, instruction forms for filing § 2254 actions in this Court and Motions for
Authorization in the court of appeals, and four copies of § 2254 forms (more copies will be
sent on request). Petitioner should keep the original and two copies of the completed § 2254
forms which can be submitted in this Court if Petitioner obtains approval from the Fourth
Circuit.
IT IS THEREFORE RECOMMENDED that Petitioner’s “Rule 60(b)” motion be
construed as an attempt by Petitioner to file a second or successive § 2254 action.
IT IS FURTHER RECOMMENDED that this action be dismissed due to
Petitioner’s failure to obtain certification from the Fourth Circuit as required by 28 U.S.C.
§ 2244 and Fourth Circuit Local Rule 22(d).

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This the 10th day of January, 2012.

/s/ P. Trevor Sharp
United States Magistrate Judge

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