BRITT v. DANIELS

Filing 5

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 07/22/2014, 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 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
ANTONIO BARTHOLOMAN BRITT, )
)
Petitioner, )
)
v.
)
)
DENNIS DANIELS,
)
)
Respondent. )

1:14CV590

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, submitted a document entitled
“Notice and Petition for Writ of Habeas Corpus.” Even though Petitioner has not used the
correct forms for a habeas corpus petition under 28 U.S.C. § 2254, it appears that Petitioner
seeks to attack his state court criminal conviction. 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 § 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 by
a person in state custody. 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.

Petitioner’s claims are unclear but, to the extent that they can be understood,
appear frivolous. Petitioner seeks to avoid criminal responsibility because he
is a “sovereign and private man” and, allegedly, not a citizen of the United

States. Neither of these facts would allow a person to commit crimes, but
avoid punishment for those crimes.
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,
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.

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. 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 22nd day of July, 2014.

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

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