SMITH v. PERRY

Filing 2

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 08/14/2014, 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
PAUL BRADY SMITH,

v.
FRANK PERRY,

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

1:14CV677

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. 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 does not state any understandable claim for relief in Section 12 of
his Petition. His first claim is labeled “Double Jeopardy,” but focuses on the
fact that the judgment in his case has multiple case numbers, which would not,
by itself, constitute double jeopardy. His second claim is for ineffective
assistance, but contains no supporting facts, only legal jargon and conclusory
statements. His third claim focuses on state court filing procedures, which
would not ordinarily create any claim for federal habeas relief. His fourth
claim is labeled as an equal protection claim, but again cites to state
procedures and does not explain how his treatment differed from any similarly
situated persons. In fact, to the extent it is decipherable at all, it appears to be
more of a speedy trial claim. Finally, Petitioner’s claims appear to be filed
years out of time and he provides no valid explanation or excuse for this
despite having the opportunity to do so in Section 18 of the Petition. Instead,
he only repeats that various federal rights have been violated. Petitioner
should be aware that this does not excuse a late filing.

Because of this pleading failure, 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 14th day of August, 2014.

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

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