EDWARDS v. COOPER

Filing 4

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 02/27/2012. IT IS THEREFORE RECOMMENDED that the Petition be dismissed for failure to apply to the United States Court of Appeals for the Fourth Circuit for an order authorizing this district court to consider the current Petition as is required by 28 U.S.C. § 2244. IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole purpose of entering this Recommendation and Order. I T IS FURTHER ORDERED that Petitioner's Motions for the Record on Appeal (Docket Entry 2 ) and Motion for Leave to Conduct Discovery (Docket Entry 3 ) are DENIED for being moot. IT IS FURTHER ORDERED that the Clerk shall send Petitioner a copy of this Recommendation and Order, instruction forms for filing § 2254 petitions in this Court and for filing a Motion for Authorization in the United States Court of Appeals for the Fourth Circuit, an application to proceed in forma pauperis (up on request), and four copies of § 2254 petition forms (more copies will be sent on request). Petitioner should keep the original and two copies of the § 2254 petition which can be submitted in this Court if Petitioner obtains approval from the Fourth Circuit.(Taylor, Abby)

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

JULIUS KEVIN EDWARDS,
Petitioner,
v.
ROY COOPER,
Respondent.

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1:12CV180

RECOMMENDATION AND ORDER
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a state prisoner, has submitted a petition for writ of habeas corpus pursuant
to 28 U.S.C. § 2254. This Petition cannot be further processed because court records reveal
that Petitioner has already attacked the same conviction and sentence in a previous § 2254
petition in case 1:06CV823. Consequently, as he was previously told in case 1:09CV528,
he must apply to the United States Court of Appeals for the Fourth Circuit for an order
authorizing this Court to consider the current Petition, as required by 28 U.S.C.
§ 2244(b)(3)(A). See AO 241 (MDNC 3/97), Instructions, paragraph 5. Because of this
pleading failure, the Petition should be dismissed. In forma pauperis status will be granted
for the sole purpose of entering this Recommendation and Order.
Petitioner has also filed a Motion for the Record on Appeal (Docket Entry 2) and a
Motion for Leave to Conduct Discovery (Docket Entry 3). These Motions will be denied as
moot given the Recommendation that the entire matter be dismissed.

IT IS THEREFORE RECOMMENDED that the Petition be dismissed for failure
to apply to the United States Court of Appeals for the Fourth Circuit for an order authorizing
this district court to consider the current Petition as is required by 28 U.S.C. § 2244.
IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole
purpose of entering this Recommendation and Order.
IT IS FURTHER ORDERED that Petitioner’s Motions for the Record on Appeal
(Docket Entry 2) and Motion for Leave to Conduct Discovery (Docket Entry 3) are
DENIED for being moot.
IT IS FURTHER ORDERED that the Clerk shall send Petitioner a copy of this
Recommendation and Order, instruction forms for filing § 2254 petitions in this Court and
for filing a Motion for Authorization in the United States Court of Appeals for the Fourth
Circuit, an application to proceed in forma pauperis (upon request), and four copies of
§ 2254 petition forms (more copies will be sent on request). Petitioner should keep the
original and two copies of the § 2254 petition which can be submitted in this Court if
Petitioner obtains approval from the Fourth Circuit.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

Date: February 27, 2012
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