King v. State of North Carolina

Filing 2

ORDER DISMISSING CASE without prejudice, for failure to obtain prefiling authorization for it pursuant to 28 U.S.C. § 2244(3)(A); Petitioners request to proceed in forma pauperis is DENIED. Petitioner shall remit the $5.00 filing fee within 30 days. Signed by Chief Judge Robert J. Conrad, Jr on 6/21/2011. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11cv258-RJC

TONEY R. KING,

)
)
Petitioner,
)
)
v.
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)
STATE OF NORTH CAROLINA, )
)
Respondent.
)
______________________________)

ORDER

THIS MATTER is before the Court on Petitioner’s second Petition Under 28 U.S.C. § 2254
for Writ of Habeas Corpus and Affidavit in Support of Request to Proceed In Forma Pauperis. (Doc.
No. 1).
As acknowledged by Petitioner, on May 26, 1999, he filed his first § 2254 Petition
challenging his 1994 North Carolina convictions and sentences for various robbery-related offenses.1
(Case No. 3:99cv221-MU, Doc. No. 1). However, on July 29, 1999, the Court entered an Order
summarily dismissing that Petition for its failure to raise a constitutional claim for relief. (Id., Doc.
No. 5).
The Court’s records further reflect that Petitioner did not appeal that decision to the Fourth
Circuit Court of Appeals. Nor does Petitioner report that he has sought permission to file the instant
Petition from the Circuit Court. Instead, this Petition shows only that after the Court dismissed his
first § 2254 Petition, Petitioner returned to the North Carolina Courts and filed various motions for

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That first Petition alleged that Petitioner was prejudiced by the imposition of five consecutive sentences; that
the trial court sentenced him above the presumptive range without an adequate basis for doing so; and that Petitioner
was prejudiced by the State Court of Appeals’ denial of his appeal. (Case No. 3:99cv221-MU, Doc. No. 1 at 4-5).

collateral review; and that those motions were rejected. (Doc. No. 1 at 5-10). By this second
Petition, Petitioner sets forth four new claims, asserting that his Fifth Amendment rights were
violated when he was interrogated on the day that he attempted to commit suicide; that his Eighth
and Fourteenth Amendment rights were violated when he was placed on suicide watch for months
without seeing a psychiatrist, thereby preventing him from focusing on his defense; that his Sixth
and Fourteenth Amendment rights were violated when he was denied his request to represent
himself and he was tried in absentia; and that his Fourteenth Amendment rights were violated when
his motion for severance was denied, the trial court failed to instruct the jury on a lesser included
offense, and his attorney failed to consult with him during his absence from the courtroom. (Id.).
Title 28 U.S.C. § 2244 provides that before a second or successive habeas corpus petition
can be filed in a district court, the petitioner must obtain an order from the appropriate court of
appeals authorizing the district court to consider that petition. 28 U.S.C. § 2244(3)(A). Inasmuch
as Petitioner does not show or even assert that he has obtained such pre-filing authorization from
the Fourth Circuit Court of Appeals, this Petition must be summarily dismissed without prejudice.
See United States v. Brannon, 42 F. App’x 627 (4 th Cir. Aug. 5, 2002) (unpublished) (noting that
in the absence of an order from the circuit court authorizing a petitioner’s second or successive §
2255 motion, a district court lacks jurisdiction to entertain the claims set forth therein).
Finally, by his request to proceed in forma pauperis, Petitioner seeks to proceed with this
action without having to pay the applicable $5.00 filing fee. However, Petitioner has failed to
submit a certified copy of his inmate trust account statement to support this request. Furthermore,
Petitioner’s IFP Affidavit reports that he has $9.82 in his inmate trust account. (Doc. No. 1 at 16).
Consequently, Petitioner’s IFP request will be denied.

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IT IS, THEREFORE, ORDERED that:
1.

Petitioner’s request to proceed in forma pauperis is DENIED;

2.

Within thirty (30) days of the entry of this Order, Petitioner shall remit the $5.00
filing fee to the Court; and

3.

Petitioner’s Petition is dismissed, without prejudice, for his failure to obtain prefiling authorization for it pursuant to 28 U.S.C. § 2244(3)(A).
Signed: June 21, 2011

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