Opinion
1:11CV757
09-22-2011
KENNETH DILVERN ROGERS, SR., Petitioner, v. HERBERT JACKSON, Respondent.
ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Petitioner, a prisoner of the State of North Carolina, has submitted a petition under 28 U.S.C. § 2254 for a writ of habeas corpus by a person in state custody, together with a request to proceed in forma pauperis. For the following reasons, the petition cannot be further processed.
1. Filing fee was not received, nor was a proper affidavit to proceed in forma pauperis submitted and signed by Petitioner. Petitioner has made a statement regarding his poverty, but does not state the amount of deposits made into his trust account in the past six months.
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. An insufficient number of copies was furnished. Petitioner must submit the original and two copies.
4. The page length of the memorandum or attachment exceeds the 20 page limit set out in LR 7.3(d).
The memorandum can be legibly handwritten on letter size paper. All pages are bound at the top and numbered at the bottom. The margin at the top shall not be less than one and one-quarter inches; all other margins not less than one inch. If printed or typed, text shall be in a fixed-pitch type size no smaller than ten characters per inch or in a proportional font size no smaller than 13 point. There shall be no more than 27 lines of regularly spaced text per page. L.R. 7.1(a).
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. 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 defects of the current petition.
L. Patrick Auld
United States Magistrate Judge