BROWN v. PERRY

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 06/19/2014, 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 filed, but then dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects the defects ofthe current Petition.(Taylor, Abby)

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

CARMEN BOYD BROWN,
Petitioner,

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V

FRANK PERRY,

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1:14CV501

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Respondent. )

ORDER AND RECOMMENDATION
OF LINITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, submitted a petition under 28

U.S.C. ç 2254 for a writ of habeas corpus by a person in state custody, together with an
application to proceed ínþrma pauperís. For the following reason, the Petition cannot be
further processed.

I

Petitioner fails to indicate that state court remedies have been exhausted as
required by 28 U.S.C. g 2254(b). This Court cannot grant relief unless state
court remedies have been exhausted. Id. In North Carolina, a petitioner may
satisff the exhaustion requirement of $ 2254 by raising her claim(s) in a direct
appeal of her conviction andlor 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 her claims in a Motion for Appropriate
Relief ("MAR") and petitioning the North Carolina Court ofAppeals for a writ
of certiorari if the MAR is denied. See Lassiter v. Lewis, No. 5: 1 1HC2082D,
2012 WL 1965434, at *4-5 (E.D.N.C. May 31,2012) (unpublished) (citing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-3l,l5A-1422). Petitioner indicates that she filed an MAR in the trial
court, but then proceeded to directly this Court rather than seek a writ of
certiorari from the North Carolina Court of Appeals.

Petitioner states that she received ineffective assistance of ceunsel, but
provides no facts to support this assertion and does not explain how her
attorney rendered ineffective assistance.

2

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 informa pauperis, and otherwise

correcting the defects noted. The Court has no authority to toll the statute of limitation,
therefore

it continues to run,

petition.

See Spencer

and Petitioner must act quickly

v. Sutton ,239

F

if

she wishes to pursue this

.3d 626 (4fh Cir. 2001). To further aid Petitioner, the

Clerk is instructed to send Petitioner a new application to proceed ínþrma pauperís, new
ç 2254 forms, and instructions for filing a $ 2254 petition, which Petitioner should follow.
In

þrma pauperís status will be granted for the sole purpose of entering this Order

and Recommendation.

IT IS THEREFORE ORDERED
purpose

thaÍ.

inþrma pauperís status is graqted for the sole

of entering this Order and Recommendation. The Clerk is instructed to send

Petitioner ç 2254 forms, instructions, and a current application to procee d inþrma pauperis.

-2-

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

of June, 2014.

Joe L. Webster
United States Magistrate Judge

-J-