JENKINS v. BALL

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD 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 t o 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
RODNEY NEAL JENKINS,

)
)
Petitioner, )
)
v.
)
)
SUPERINTENDENT MICHAEL BELL, )
)
Respondent. )

1:14CV504

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 a writ of habeas corpus by a person in state custody, together with an
application to proceed in forma pauperis. 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. Petitioner submitted an in forma
pauperis application form, but it is not the form for use by prisoners for filing
in this Court and, more importantly, it fails to disclose the amount of deposits
into Petitioner’s prison trust account during the past six months.

2.

Petitioner did not sign the in forma pauperis form or his Petition. At least one
copy of the Petition must bear an original signature. Rule 2(c), Rules
Governing § 2254 Cases.

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.
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 19th day of June, 2014.

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

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