ROGERS v. STATE OF NORTH CAROLINA

Filing 2

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/18/2013, that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. The Clerk is instructed to send P etitioner § 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
REGINALD LEE ROGERS, SR.,

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Petitioner, )
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v.
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STATE OF NORTH CAROLINA,
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Respondent. )

1:13CV547

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, submitted a petition under 28
U.S.C. § 2254 for 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 an affidavit to proceed in forma pauperis
submitted and signed by Petitioner.

2.

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.

3.

Petitioner fails to clearly indicate that state court remedies have been
exhausted as required by 28 U.S.C. § 2254(b). This Court cannot grant relief
unless state court remedies have been exhausted. Id. 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). Petitioner should make it clear in his
Petition that he has exhausted his state remedies as to any claims he raises.
Because of these pleading failures, 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. 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 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. The Clerk is instructed to send
Petitioner § 2254 forms, instructions, and a current application to proceed in forma pauperis.

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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 18th day of July, 2013.

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

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