FULLARD v. PERRY

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 04/15/2015, that in forma pauperis status is granted for the sole purpose of entering this order and recommendation. RECOMMENDED that this action be filed, but then dismissed sua sponte pursuant to Rule 4, Rules Governing Section 2254 Cases. (Taylor, Abby)

IN THE LTNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

REGINALD FULLARD,

V

FRANK PERRY,

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

1:15CV251

ORDER AND RECOMMENDATION
OF LINITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, submitted a Petition under 28

U.S.C. ç 2254 for writ of habeas corpus by a person in state custody. Rule 4, Rules
Governing Section 2254 Proceedings, states:

If it plainly

appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss
the petition and direct the clerk to notiff the petitioner.

A writ of habeas corpus may issue if

a

petitioner demonstrates that he is in state custody in

violation of the Constitution, laws, or treaties ofthe United States. 28 U.S.C.

$

2254(a). For

the following reasons, this Petition should be summarily dismissed pursuant to Rule 4, Rules

Governing Section 2254 Cases

Under 28 U.S.C. $$ 22a1(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 has enhanced a current sentence. See Male4g v. Cook, 490 U.S.

488, 492 (1989).

If a petitioner

is not in custody on the challenged conviction, the Court

lacks subject matterjurisdiction in the case. Id. at494. In this case, Petitioner seeks to attack

convictions he obtained in the Forsyth County Superior Court on August 6, 1985, in cases
85CRS037301, 84CR5022591, and 84CR5022590. (Docket Entry 1, $$

l, 2.)

that he received a sentence of " 10 years total--(4 years and 6 years)." (Id., $

He reports

3.) A simple

mathematical calculation reveals that Petitioner's sentences for these conviction necessarily

expired approximately twenty years

ago. This is supported by the North

Department ofPublic Safety's website, which reports that

a

Carolina

person by the name of "Reginald

Fullard," was convicted in cases 85CRS037301 and 84CRS022591 from Forsyth County,
received sentences

of six and four years,

and was released on February

5, 1989.

See

http://www.doc.state.nc.us/offenders (search for "Reginald Fullard") last completed April

13,

20I5).t Further, those records reveal that Petitioner

received and served multiple

sentences following his release from the 1985 convictions. Petitioner is currently in custody

serving a sentence for a much more recent conviction for assault with a deadly weapon with

intentto kill inflicting serious injury. However,
$ 2254's custody requirement as to

as stated above,

this is not suff,rcientto meet

the 1985 convictions even if those convictions affect his

current sentence. Further, the Court informed Petitioner of this fact in conjunction with a
I

This person also has the offender identification number "0137874," which matches the number on
the envelope containing the Petition in the present case.

-2-

prior filing in Fullard v. Perry, No.

1:

15CV196 (M.D.N.C.), and warned him that dismissal

of his claim would occur if he could not demonstrate custody. However, despite this
warning, he fails to even allege any potential basis for custody in the present Petition other
than a statement that the prior convictions affect his present case. (Docket Entry 2,

Ground Four

ç

12,

(e).) The Court finds that Petitioner is not in custody for the challenged

conviction and that it lacks jurisdiction over this Petition because Petitioner does not satisff
the custody requirement

Inþrma pauperís status will be granted for the sole purpose of entering this order and
recommendation

IT IS THEREFORE ORDERED that informa pauperís status is granted for the sole
purpose of entering this order and recommendation.

IT IS RECOMMENDED that this action be f,rled, but then dismissed sua sponte
pursuant to Rule 4, Rules Governing Section 2254 Cases

This,

the

of April, 2015

Joe L. Webster
S tates Magistrate Judge

-J-