ZUNIGA v. STATE OF NORTH CAROLINA

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 12/23/2014, 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 informa 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 currentPetition.(Taylor, Abby)

IN THE LINITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JOSE ISMAEL RUIZ ZLINIGA,

Petitioner,

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V

STATE OF NORTH CAROLINA,

1:14CV1064

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Respondent. )

Petitioner, a prisoner of the State of North Carolina, submitted a petition under 28
U,S.C. 5 2254 for a writ of habeas corpus by a person in state custody, together with an
application to proceed Ìnþrma pauperis. For the following reasons, the Petition cannot be
further processed.
1

Petitioner fails to indicate that state court remedies have been exhausted as
required by 28 U.S.C. ç 2254(b). As the Court previously informed Petitioner
in relation to an earlier filing, this Court cannot grant relief unless state court
remedies have been exhausted. Id. In North Carolina, a petitioner may satis$'
the exhaustion requirement of $ 2254 by raising his claim(s) in a direct appeal
of his 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 his 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 Lassiterv. Lewis, No. 5:llHC2082D,
2012 WL 1965434, at *4-5 (E.D.N.C. May 31,2012) (unpublished) (citing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-31, 154-1422). Petitioner indicates that he raised some of his claims
in certain filings, but it does not appear that he exhausted any of them.
Petitioner must exhaust his state court remedies as to all claims that he wishes
to bring in this Court.

Petitioner does not name his custodian as the respondent. Rule 2, Rules
Governing Section 2254 Cases, requires that the petition name the state officer
having custody ofthe applicant as respondent. The Court takes judicial notice
that a proper respondent for North Carolina state prisoners challenging their
North Carolina judgment of conviction is the Secretary of Public Safety.
Naming the wrong custodian is a common point of confusion, and the Court
assumes that Petitioner wishes to name the proper custodian as respondent.
Accordingly, unless Petitioner objects within eleven days of the issuance of
this Order, the Petition is deemed from this point forward to be amended to
name Frank Perry, who is currently the Secretary of Public Safety, as

2

Respondent.
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 ínþrma pauperís, 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

petition.

See Spencer

he wishes to pursue this

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

þrma pauperís, new

ç 2254 forms, and instructions for filing a $ 2254 petition, which Petitioner should follow.
In

þrma pauperis

status

will

be granted for the sole purpose of entering this Order

and Recommendation.

IT IS THEREFORE ORDERED that ínforma pauperís status is granted for the sole
purpose

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

Petitioner ç 2254 forms, instructions, and

a

current application to procee d informa pauperis

.

IT IS RECOMMENDED that this action be filed, but then dismissed sua sponte
without prejudice to Petitioner flrling

a

new petition which corrects the defects of the current

Petition.
This, the

of December,2014,

ebster
States Magistrate Judge
J

Uni

-J-