MOLINA v. PERRY

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 05/19/2015, 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. RECOMMENDED that this action be filed, but then dismissed sua sponte without prejudice to Petitioner filing a new petition which corrects the defect of the current Petition. (Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JERONIMO DIAZ MOLINA,

v.
FRANK PERRY,

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

1:15CV395

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

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

Petitioner indicates that he did not exhaust his state court remedies as required
by 28 U.S.C. § 2254(b). This Court cannot grant relief unless Petitioner first
exhausts any state court remedies. Id. In North Carolina, a petitioner may
satisfy the exhaustion requirement of § 2254 by raising his claim(s) in a direct
appeal of his conviction and/or 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 of Appeals for a writ
of certiorari if the MAR is denied. See Lassiter v. Lewis, No. 5:11HC2082D,
2012 WL 1965434, at *4-5 (E.D.N.C. May 31, 2012) (unpublished) (citing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, 15A–1422).

Because of this pleading failure, 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 in forma pauperis, and otherwise
correcting the defect noted. The Court has no authority to toll the statute of limitation,
therefore it continues to run, and Petitioner must act quickly if he wishes to pursue this
petition. See Spencer 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 forma pauperis, new
§ 2254 forms, and instructions for filing a § 2254 petition, which Petitioner should follow.
In forma pauperis status will be granted for the sole purpose of entering this Order
and Recommendation.
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 filed, but then dismissed sua sponte
without prejudice to Petitioner filing a new petition which corrects the defect of the current
Petition.
This, the 19th day of May, 2015.

/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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