ARCHIE v. DISMUKES

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
OTHA D. ARCHIE, )
)
Petitioner, )
)
v. ) 1:25CV638
)
LESLIE DISMUKES, )
)
Respondent. )
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. For the following reasons, the Petition cannot
be further processed.
1. The filing fee was not received, nor was an affidavit to proceed in forma
pauperis submitted and signed by Petitioner.
2. The Petition indicates that state court remedies have not been exhausted as
required by 28 U.S.C. § 2254(b). This Court cannot grant relief unless state
court remedies have been exhausted. 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(unpublished) (citing O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999), and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). According to the Petition, Petitioner
only raised his claims in a habeas corpus petition to the North Carolina
Supreme Court, rather than follow one of the two processes just described.
He must properly exhaust his state court remedies before filing in this Court.
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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.1 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
1 Because Petitioner’s submission is being dismissed without prejudice and is not being decided on its
merits, this case will not count as a first petition which would later trigger the prohibitions against second
or successive petitions found in 28 U.S.C. § 2244(b). However, if Petitioner chooses to later submit a
§ 2254 petition that conforms with this Order and Recommendation, he should be aware that he is normally
entitled to have only one § 2254 petition decided on its merits. Second or successive petitions are barred
from consideration by this Court unless a petitioner first receives permission from the Fourth Circuit Court
of Appeals to file such a petition. 28 U.S.C. § 2244(b). That permission is granted only in very narrow
circumstances. Because of this, Petitioner should act carefully in resubmitting a petition. See generally
Castro v. United States, 540 U.S. 375 (2003). If Petitioner wishes to challenge his conviction, he must use
the § 2254 forms supplied by the Court, include all of the claims for relief he wishes to raise, and closely
follow the instructions provided. Any such filing must be timely and, to the extent there are any issues
regarding the running of the statute of limitations in this case, the parties can litigate those issues following
any refiling by Petitioner. Petitioner may also choose not to submit a petition, in which case the claims will
not be considered further. Finally, if Petitioner wants a form of relief other than relief from his conviction
or sentence, he should make that clear in any new submission and should state that he is not seeking to
attack his conviction or sentence. He should not use the § 2254 forms in that instance.
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Petitioner § 2254 forms, instructions, and a current application to proceed in forma
pauperis.
IT IS RECOMMENDED that this action be dismissed sua sponte without prejudice
to Petitioner filing a new petition which corrects the defects of the current Petition.
This, the 21st day of October, 2025.
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