MARSHALL v. WHITE
Filing
2
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/08/2013, that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. The Clerk is instructed to r eturn the $5.00 filing fee and to send Petitioner § 2254 forms, instructions, and a current application to proceed in forma pauperis. 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
LAMOND MARSHALL,
v.
SUSAN WHITE,
)
)
Petitioner, )
)
)
)
)
)
Respondent. )
1:13CV63
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 writ of habeas corpus by a person in state custody, along with the $5.00
filing fee. For the following reasons, the Petition cannot be further processed.
1.
Petition was not signed by Petitioner (at least one copy must bear an original
signature). Rule 2(c), Rules Governing § 2254 Cases.
Because of this pleading failure, 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.1 To further aid Petitioner, the Clerk is instructed to return the
$5.00 filing fee and 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.
1
To the extent there are any issues regarding the running of the statute of limitations in this case, the parties
can litigate those issues following any refiling by Petitioner.
In addition, the Court notes that in any refiling, Petitioner should clearly indicate for
each claim he seeks to raise whether state court remedies have been exhausted as required
by 28 U.S.C. § 2254(b). In North Carolina, a petitioner may satisfy the exhaustion
requirement of § 2254 by raising his claim(s) in a direct appeal of his conviction and/or
sentence to the North Carolina Court of Appeals followed by a petition to the Supreme Court
of North Carolina for discretionary review, or by raising his claims in a Motion for
Appropriate Relief (“MAR”) and petitioning the North Carolina Court of Appeals for a writ
of certiorari if the MAR is denied. See Lassiter v. Lewis, No. 5:11HC2082D, 2012 WL
1965434, at *4-5 (E.D.N.C. May 31, 2012) (unpublished) (citing O’Sullivan v. Boerckel, 526
U.S. 838, 845 (1999), and N.C. Gen. Stat. §§ 7A–31, 15A–1422). Here, the Petition
indicates that two of Petitioner’s claims, Grounds Two and Four, were not raised in the state
courts at all. His other claims, Grounds One and Three, may have been raised, but the
Petition is not clear as to whether they were raised in both a Motion for Appropriate Relief
and in a petition seeking a writ of certiorari from the North Carolina Court of Appeals.
Petitioner should make it clear that his state court remedies were exhausted as to any claims
he raises, or should set out the basis on which he contends that he can proceed without
exhausting his state remedies.
In forma pauperis status will be granted for the sole purpose of entering this Order
and Recommendation.
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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 return the
$5.00 filing fee and 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.
This, the 8th day of July, 2013.
/s/ Joi Elizabeth Peake
United States Magistrate Judge
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