PEREZ v. DANIELS

Filing 3

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 01/04/2016, that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation. The Clerk is instruc ted 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 defects of the current Petition.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RAUL ZAMORA PEREZ,

v.
FAYE DANIELS,

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

1:15CV631

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 reasons, the Petition cannot
be further processed.
1.

The filing fee was not received, nor was a sufficient affidavit to proceed in
forma pauperis submitted and signed by Petitioner. The application
submitted by Petitioner does not include the total amounts of deposits into
his prison trust account for the six months prior to filing, which the Court
needs in order to decide the application. Petitioner includes a statement
showing deposits for only about one month. He checks boxes on the form
indicating no income during the past twelve months, but the statement he
provides contradicts this by showing that Petitioner received $100 in one
month alone.

2.

Petitioner does not appear to state any viable claim for relief. Petitioner
writes absolutely nothing in the spaces on the § 2254 form set aside for him
to list his claims. In a portion of the form addressing the timeliness of any
claims, Petitioner writes a lengthy explanation that appears to indicate that
he may face deportation following his future release from prison, but that
he wishes to go live with his brother in Texas instead of being deported.
Petitions under § 2254 address alleged state violations of federal

constitutional rights which are connected with state criminal convictions
and sentences. Petitioner’s future release and his deportation or living
arrangements do not appear to relate to any violations of his federal rights
by the State of North Carolina in connection with his current convictions
and sentences. They also appear to involve matters in the control of federal
immigration authorities, and any decisions by those authorities appear to be
in the future. If Petitioner contends that his state convictions or sentences
are unconstitutional in some way, he must clearly state his claims under
§ 2254 on the proper forms in the spaces provided.
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 in forma pauperis, and
otherwise correcting the defects noted. 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.

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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 4th day of January, 2016.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

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