WATSON v. PERRY

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 06/11/2014, that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. RECOMMENDED tha t 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 and is filed in the correct district. 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
EDWARD JAMES WATSON,

v.
FRANK PERRY,

)
)
Petitioner, )
)
)
)
)
)
Respondent. )

1:14CV443

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a federal prisoner, submitted a document entitled as a Motion under 28
U.S.C. § 2255. However, it appears that Petitioner seeks to attack his prior state court
criminal convictions. The document he 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
under 28 U.S.C. § 2254. For this reason, the Court will construe the submission as a petition
under 28 U.S.C. § 2254 for a writ of habeas corpus. For the following reasons, the Petition
cannot be further processed.
1.

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

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.

The Petition was not filed in a proper district. Under 28 U.S.C. § 2241(d),
“[w]here an application for a writ of habeas corpus is made by a person in
custody under the judgment and sentence of a State court of a State which
contains two or more Federal judicial districts, the application may be filed in
the district court for the district wherein such person is in custody or in the

district court for the district within which the State court was held which
convicted and sentenced him.” See also Braden v. 30th Judicial Circuit Court
of Kentucky, 410 U.S. 484, 497(1973). In this case, it appears that Petitioner
is presently in custody in South Carolina. It further appears that Petitioner was
convicted and sentenced in the Superior Court of Cumberland County, within
the territorial jurisdiction of the United States District Court for the Eastern
District of North Carolina. Petitioner should seek the proper forms from the
Clerk of that district and file a habeas petition in that district. The address for
the Clerk is: 310 New Bern Ave., Room 574, Raleigh, NC 27601. Further, in
accordance with § 2241(d) and the Joint Order of the United States District
Courts for the Eastern, Middle, and Western Districts of North Carolina, a
§ 2254 Petition filed in this District would be transferred to the United States
District Court for the Eastern District of North Carolina. If Plaintiff files a
§ 2254 Petition in this District, he should address whether the case should be
transferred to the Eastern District of North Carolina.
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 and
in the correct district, with the $5.00 filing fee, or a completed application to proceed in
forma pauperis, and otherwise correcting the defects noted.1
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 and is filed in the proper district.

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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IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole
purpose of entering this Order and Recommendation.
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 and is filed in the correct district. The new
petition must be accompanied by either the five dollar filing fee or a current application to
proceed in forma pauperis.
This, the 11th day of June, 2014.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

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