SELLERS v. STATE OF NORTH CAROLINA et al

Filing 2

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 04/13/2015, that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation and that the Clerk return the $5.00 filing fee to Plaintiff. RECOMMENDED that this action be filed, but then dismissed sua sponte without prejudice to Petitioner moving to amend his pending habeas petition in case 1:14CV988. (Taylor, Abby)

IN THE I.JNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRIÇT OF NORTH ÇAROLINA
KELVIN SELLERS,

)
)
Petitioner,
)
)
V
)
)
STATE OF NORTH CAROLINA, et al, )
)
Respondent. )

1:15CV306

ORDER AND RECOMMENDATION
OF LINITED STATES MAGISTRATE JUDGE

Petitioner,

a

prisoner of the State of North Carolina, submitted a document styled as

a lawsuit against the State

of North Carolina entitled together with a $5.00 f,rling fee. Even

though Petitioner has not used the correct forms for

ç 2254, it

a

habeas corpus petition under 28 U.S.C

appears that Petitioner seeks primarily

Ío

attack his state court criminal

convictions.r The document he filed is not arccognizable method for achieving this goal
Instead, the proper avenue for such an attack is ordinarily a petition for habeas corpus, For

this reason, the Court
a

will

construe the submission as a petition under 28 U.S,C. $ 2254 for

writ of habeas co{pus by a person in state custody. However, Petitioner already filed one

habeas petition

which is pending in this Court at this time. [No. 1 :14CV988.] Petitioner may

not file an additional habeas petition regarding the same convictions. The proper course

I

of

Petitioner mixes his attack on his conviction with other allegations regarding prison conditions. Those claims
are not proper in a habeas action, but must be brought instead in a civil rights action under 42 U.S.C. $ 1983, which
requires its own forms, as well an either a $400.00 filing fee or an application to proceed in forma pauperis. If Petitioner
wishes to file such an action, he should request the proper forms from the Clerk.

action is to flrle a motion to amend the pending petition if Petitioner wishes to add claims and

receive permission to do so from the Court.
Because of this pleading failure, the Petition should be filed and then dismissed,

without prejudice to Petitioner moving to amend his pending habeas petition in

case

l:14CV988.
In forma pauperis status

will

and Recommendation and the Clerk

be granted for the sole purpose of entering this Order

will return Plaintiff s $5.00 filing

fee

IT IS THEREFORE ORDERED that inþrma pauperís status is granted for the sole
purpose of entering this Order and Recommendation and that the Clerk return the $5.00 filing
fee to Plaintiff.

IT IS RECOMMENDED that this action be filed, but then dismissed sua sponte
without prejudice to Petitioner moving to amend his pending habeas petition in
1:14CV988.
This,

the

of April, 2015.

Webster
United States Magistrate Judge
.

a

case