Deyton

Filing 4

ORDER granting 2 MOTION (Sealed - Participants) to Proceed in forma pauperis, therefor, all process issued in connection with this action shall be served by the US Marshal at the Gov's expense; consideration of P etitioners 3 MOTION to Hold 1 Federal Habeas Proceedings in Abeyance is deferred pending the filing by the Respondents, by and through the NC Atty Gen, of a RESPONSE to such motion.(Response due by 7/30/2010 & Petitioner's Reply due by 8/10/2010); Motions terminated: 2 MOTION (Sealed - Participants) to Proceed in forma pauperis. Signed by Magistrate Judge Dennis Howell on 7/1/10. (ejb)

- DLH Deyton vs Keller, et al

Doc. 4

I N THE UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF NORTH CAROLINA A S H E V IL L E DIVISION 1 :1 0 cv 1 2 7 J O S I A H JACOB DEYTON, P e titio n e r, V s. A L V I N W. KELLER, Secretary of t h e North Carolina Department o f Correction; and LANDER C O R P E N I N G , Superintendent of F o o th ills Correctional Institution, R esp on d en ts. _______________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) )

ORDER

T H I S MATTER is before the court on petitioner's Application to Proceed In F o r m a Pauperis (#2) and Motion to Hold Federal Habeas Proceedings in Abeyance (# 3 ). Petitioner is represented by counsel. I. I n Forma Pauperis Application

T h e court has closely reviewed petitioner's verified Application to Proceed in F o r m a Pauperis, which includes a record of his prisoner trust account for the past six m o n th s . See 28 U.S.C. § 1915(a)(2). While neither average monthly deposits nor a v e r a g e monthly balances are set forth in such records, see 28 U.S.C. § 1915(b)(1)(A)(B ), it appears from a review of the entirety of such record that petitioner has only

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r e c e i v e d very modest deposits to his account, that he has made equally modest w ith d ra w s from such account primarily in the canteen, and that he presently has 9 cents in such account. Further, there is no evidence in such accounting that the petitioner has in t e n t io n a lly drawn down his trust account in anticipation of this application. It a p p e a rin g to the court, and the court finding as a fact from the application and affidavit s u b m itte d , that petitioner is unable to make prepayment of the fees or costs or provide s e c u rity therefor, the application will be allowed. II. M o tio n to Stay Proceedings

P e titio n e r next seeks to stay these proceedings, contending that he has recently f ile d in the North Carolina Supreme Court a petition for writ of certiorari in which he a ss erts the same legal contention asserted in this federal petition. He contends that

b e c a u s e this action is subject to a one-year statute of limitations under Section 2 2 4 4 (d )(1 ), and because he is required to exhaust all his state remedies before bringing th is action as required under Section 2254(b)(1)(A), he has as "[t]he Supreme Court h a s suggested" filed this petition as a "`protective' petition in federal court and re q u es t[s ] that it be held in abeyance." Motion, at 3. In relevant part, the Supreme C o u r t held as follows: A prisoner seeking state postconviction relief might avoid this p r ed ic am e n t, however, by filing a "protective" petition in federal court a n d asking the federal court to stay and abey the federal habeas p ro c e e d in g s until state remedies are exhausted. See Rhines v. Weber, ante,
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5 4 4 U.S., at 278, 125 S.Ct. 1528, 1531, 161 L.Ed.2d 440 (2005). A p e titio n e r's reasonable confusion about whether a state filing would be tim e ly will ordinarily constitute "good cause" for him to file in federal c o u rt. Ibid. ("[I]f the petitioner had good cause for his failure to exhaust, h is unexhausted claims are potentially meritorious, and there is no in d ic a tio n that the petitioner engaged in intentionally dilatory tactics," th e n the district court likely "should stay, rather than dismiss, the mixed p e titio n " ) . P a c e v. DiGuglielmo, 544 U.S. 408, 416-417 (2005). While such decision appears to b e clear, the court will afford respondents, by and through the Attorney General of the S ta te of North Carolina, an opportunity to file a brief in response to the Motion to Stay b e fo r e the court considers the merits of such motion. In the interim, the court will stay re sp o n d e n ts ' obligation to Answer the petition until such time as the Motion to Stay is resolved or any stay thereinafter allowed is lifted.1 ORDER I T IS, THEREFORE, ORDERED that petitioner's application to proceed in fo r m a pauperis (#2) be, and the same is hereby, ALLOWED, and petitioner is hereby p e rm itte d to file and prosecute said action to its conclusion without prepayment of e ith e r fees or costs and without providing security therefor. I T IS FURTHER ORDERED that all process issued in connection with this a ctio n shall be served by the United States Marshal at the expense of the United States

The court will, of course, afford the respondents a reasonable period of time to so Answer or otherwise respond after such issue is resolved. -3-

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G o v e r n m e n t. IT IS FURTHER ORDERED that consideration of petitioner's Motion to Hold F e d e ra l Habeas Proceedings in Abeyance (#3) is deferred pending the filing by the re sp o n d e n ts , by and through the Attorney General of North Carolina, of a RESPONSE to such motion. Pending resolution of such motion, respondents are relieved from a n s w e rin g or otherwise responding to the petition unless and until directed to do so by th is court. The Attorney General is respectfully instructed to file his response to the M o tio n to Hold Federal Habeas Proceedings in Abeyance (#3) not later than July 30, 2 0 1 0 , and petitioner is allowed through August 10, 2010, to file a reply. *** T h e Clerk of this court is respectfully instructed to send a service package to the U n ited States Marshal for service forthwith, and include therein (in addition to the p e titio n and other documents for service), a copy of petitioner's Motion to Hold F e d e r a l Habeas Proceedings in Abeyance (#3) and this Order.

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Signed: July 1, 2010

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