THOMAS v. UNITED STATES OF AMERICA

Filing 2

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 09/15/2015, that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. The Clerk is instructe d to send Petitioner § 2254 forms, instructions, and a current application to proceed in forma pauperis. RECOMMENDED that this action be construed as a habeas petition under 28 U.S.C. § 2254 and dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects the defects of the current Petition. The new petition must be accompanied by either the five dollar filing fee or a current application to proceed in forma pauperis.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
PATRICK THOMAS,

)
)
Petitioner, )
)
v.
)
)
UNITED STATES OF AMERICA,
)
)
Respondent. )

1:15CV330

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, submitted a document entitled
“Motion for an [sic] Standard Review.” Even though Petitioner has not used the correct
forms for a habeas corpus petition under 28 U.S.C. § 2254, it appears that Petitioner
seeks to attack his state court criminal conviction.
recognizable method for achieving this goal.

The document he filed is not a

Instead, the proper avenue for such an

attack is ordinarily a petition for habeas corpus. For this reason, the Court will construe
the submission as 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 has not used the required § 2254 Forms. Rule 2, R. Gov. § 2254
Cases. The Clerk will forward to Petitioner the proper forms.

3.

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 of the 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
fourteen 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 will 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.1 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. 2

1

Because Petitioner’s submission is being dismissed without prejudice and is not being decided on its merits,
this case will not count as a first petition which would later trigger the prohibitions against second or
successive petitions found in 28 U.S.C. § 2244(b). However, if Petitioner chooses to later submit a § 2254
petition that conforms with this Order and Recommendation, he should be aware that he is normally entitled
to have only one § 2254 petition decided on its merits. Second or successive petitions are barred from
consideration by this Court unless a petitioner first receives permission from the Fourth Circuit Court of
Appeals to file such a petition. 28 U.S.C. § 2244(b). That permission is granted only in very narrow
circumstances. Because of this, Petitioner should act carefully in resubmitting a petition. See generally Castro
v. United States, 540 U.S. 375 (2003). If Petitioner wishes to challenge his conviction, he must use the § 2254
forms supplied by the Court, include all of the claims for relief he wishes to raise, and closely follow the
instructions provided. Any such filing must be timely and, to the extent there are any issues regarding the
running of the statute of limitations in this case, the parties can litigate those issues following any refiling by
Petitioner. Petitioner may also choose not to submit a petition. Finally, if Petitioner wants a form of relief
other than relief from his conviction or sentence, he should make that clear in any new submission and
should state that he is not seeking to attack his conviction or sentence. He should not use the § 2254 forms
in that instance.
2

Petitioner also seeks funds to obtain an investigator and, perhaps, an appointment of counsel under 18
U.S.C. § 3006A. Neither of these requests is appropriate at this time because Petitioner does not have a valid
action pending under 28 U.S.C. § 2254 as required by § 3006A(a)(2)(B). Further, his reasons for needing an

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In forma pauperis status will be granted for the sole purpose of entering this Order
and Recommendation of dismissal with permission to file a new petition which corrects
the defects of the present Petition.
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 construed as a habeas petition under
28 U.S.C. § 2254 and dismissed sua sponte without prejudice to Petitioner filing a new
petition which corrects the defects of the current Petition. The new petition must be
accompanied by either the five dollar filing fee or a current application to proceed in
forma pauperis.
This, the 15th day of September, 2015.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

investigator or counsel are not clear. If Petitioner files a proper § 2254 Petition, he may also file a Motion
requesting counsel or an investigator and setting out his need for those services.

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