HERNANDEZ v. UNITED STATES OF AMERICA et al

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 05/10/2013, 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. 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
CARLOS HERNANDEZ,

)
)
Petitioner, )
)
v.
)
)
UNITED STATES OF AMERICA,
)
et al.,
)
)
Respondent. )

1:13CV378

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, has submitted a document entitled
as a petition for a writ of habeas corpus, together with an application to proceed in forma
pauperis. Petitioner has not used the correct forms for a habeas corpus petition under 28
U.S.C. § 2254, but that statute applies where a petitioner seeks to attack his state court
criminal conviction, which Petitioner’s submission apparently seeks to do. 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.

Filing fee was not received, nor was a proper affidavit to proceed in forma
pauperis submitted and signed by Petitioner. Petitioner did submit an in forma
pauperis application, but it is not on the form to be used by prisoners filing in
this Court and does not contain the information needed to make an in forma
pauperis determination.

2.

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

3.

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 Public Safety.
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 Kieran J. Shanahan, who is currently the Secretary of Public Safety, as
Respondent.

4.

Plaintiff’s claims appear frivolous. They assert that his race was labeled as
“white” during the state court proceedings and that this action
“denationalized” him or otherwise violated his rights. However, merely
labeling a person as having a certain race in no way violates his constitutional
rights or denationalizes him. Petitioner may also believe that the state court
had no jurisdiction over him because he is “El Salvadorean American.”
However, being of a certain nationality or ethnicity does not exempt a person
from the laws of North Carolina when he is present in the State or allow him
to commit crimes with impunity.

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.1 The Court has no authority to toll the statute of limitation,

1

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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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 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.
This, the 10th day of May, 2013.

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

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