BOONE v. NORTH CAROLINA DEPARTMENT OF CORRECTIONS

Filing 2

ORDER AND RECOMMENDATION - MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 01/05/2012. 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 construed as a habeas petition under 28 U.S.C. § 2254 and dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects the defects of the current petition. The new petition must be accompanied by either the five dollar filing fee or a current application to proceed in forma pauperis.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
TRUMAN CALVIN BOONE,

)
)
Petitioner,
)
)
v.
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)
1
)
ALVIN W. KELLER JR. ,
)
Respondent. )

1:12CV2

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, has submitted a paper writing in which
he states that he believes his conviction and sentence for first-degree burglary were a product of
racial prejudice. He asserts that his rights have been violated under “the Racial Justice Act” and that
his sentence constitutes cruel and unusual punishment. Even though Petitioner has not used the
correct forms for a habeas corpus petition under 28 U.S.C. § 2254, it appears that Petitioner seeks
to attack his state court criminal conviction and sentence. The document he has filed is not a
recognizable method for achieving this goal. Instead, the proper avenue for such an attack is
ordinarily a petition for habeas corpus. For this reason, the Court will construe the submission as
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

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.

1.

Petitioner has not used the required § 2254 Forms. Rule 2, R. Gov. § 2254 Cases.
The Clerk will forward to Petitioner the proper forms.

2.

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

3.

Petition was not signed by Petitioner (at least one copy must bear an original
signature). Rule 2(c), Rules Governing § 2254 Cases.

4.

To the extent that Petitioner wishes to raise claims under “the Racial Justice Act” it
appears that he wishes to raise claims under state law. Petitions under § 2254 cannot
be raised based on state law, but must allege violations of a petitioner’s federal
statutory or constitutional rights.

Because of these pleading failures, the Petition will 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.2 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

2

Because Petitioner's submission is being dismissed without prejudice and is not being decided on
its merits, this case will not count as a first petition which would later trigger the prohibitions against second
or successive petitions found in 28 U.S.C. § 2244(b). However, if Petitioner chooses to later submit a § 2254
petition that conforms with this Order and Recommendation, he should be aware that he is normally entitled
to have only one § 2254 petition decided on its merits. Second or successive petitions are barred from
consideration by this Court unless a petitioner first receives permission from the Fourth Circuit Court of
Appeals to file such a petition. 28 U.S.C. § 2244(b). That permission is granted only in very narrow
circumstances. Because of this, Petitioner should act carefully in resubmitting a petition. See generally
Castro v. United States, 540 U.S. 375 (2003). If Petitioner wishes to challenge his conviction, he must use
the § 2254 forms supplied by the Court, include all of the claims for relief he wishes to raise, and closely
follow the instructions provided. Petitioner may also choose not to submit a petition. Finally, if Petitioner
wants a form of relief other than relief from his conviction or sentence, he should make that clear in any new
submission and should state that he is not seeking to attack his conviction or sentence. He should not use the
§ 2254 forms in that instance.

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entering this Order and Recommendation of dismissal with permission to file a new petition which
corrects the defects of the present petition.
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 construed as a habeas petition under 28 U.S.C.
§ 2254 and dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects
the defects of the current petition. The new petition must be accompanied by either the five dollar
filing fee or a current application to proceed in forma pauperis.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
January 5, 2012

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