FULLARD v. PERRY

Filing 2

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 03/12/2015, 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 ofthe current Petition.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
REGINALD FULLARD,

)
)
Petitioner,
)
)
v
)
)
STATE OF NORTH CAROLINAI,
)
)
Respondent. )

1:15CV196

OF I-INITED STATES MAGISTRATE JUDGE

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

U.S.C.

S

2254 for a writ of habeas corpus by a person in state custody. For the following

reasons, the Petition cannot be further processed.

I

The filing fee was not received, nor was an affrdavit to proceed in forma
pauperís submitted and signed by Petitioner.

2.

Petitioner does not appear to state any viable claim for relief. Under 28 U.S.C.
$$ 22al(c)(3) and 2254(a) the federal courts have jurisdiction to entertain
applications for habeas corpus only if the petitioner is "in custody." The
custody requirement of $ 2254 is not met when the prisoner is challenging an
expired state sentence, even if the expired sentence enhances a current
sentence. See Maleng v. Cook, 490 U.S. 488, 492 (1989). Here, Petitioner
challenges two convictions from 1985 for which he received sentences of four
and six years. Those sentences likely expired decades ago. Unless Petitioner
can show otherwise, his claim would be dismissed.

I

Petitioner does not name his custodian as the respondent. Rule 2, Rules Goveming Section 2254 Cases,
requires that the petition name the state offlrcer having custody of the applicant as respondent. The Court takes judicial
notice that a proper respondent for Nofh Carolina state prisoners challenging their North Carolina judgment of
conviction is the Secretary ofPublic 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 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 ínforma pauperis, and otherwise

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

it

petition.

See Spencer

continues to run, and Petitioner must act quickly

if

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 inþrma pauperis, new
S

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 pauperis status is granted for the sole
purpose

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

Petitioner 52254 forms, instructions, andacurrentapplicationtoproceed informapauperís.

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 March,2015.

United

.t

ebster
Magistrate Judge