Opinion

Brown-Bey v. State of North Carolina

Court
District Court, W.D. North Carolina
Filed
Nov 18, 2021
Cited by
0 cases
Authority
More cited than 24.8%

in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong

How later courts described this case

  • in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

CIVIL CASE NO. 1:21-cv-00247-MR

EDDRICCO L. BROWN-BEY,1 )

)

Plaintiff, )

)

vs. )

)

STATE OF NORTH CAROLINA, et al., ) ORDER

)

Defendants. )

_______________________________ )

THIS MATTER is before the Court on the Plaintiff’s pro se “Emergency

Petition for Constitutional Rights Protected by the 5th and 8th [amendments]

Articles to the Bill of Rights of [1791].” [Doc. 8].

The pro se Petitioner, who is presently incarcerated in the North

Carolina Department of Safety, filed a an “Emergency Petition” in the instant

case that was construed as a Petition for Writ of Habeas Corpus pursuant to

28 U.S.C. § 2254. [Doc. 1]. On October 29, 2021, the Petition was dismissed

without prejudice as an unauthorized successive § 2254 petition and this

case was closed. [Docs. 3, 4]. He has filed a Notice of Appeal. [Doc. 8].

1 According to the North Carolina Department of Public Safety’s website, the Petitioner’s

name is Eddricco L. Brown. See https://webapps.doc.state.nc.us/opi/viewoffender.do?

method=view&offenderID=0700738&searchOffenderId=0700738&searchDOBRange=0

&listurl=pagelistoffendersearchresults&listpage=1 (last accessed Nov. 10, 2021); Fed.

R. Evid. 201.

The Petitioner has now filed the instant “Emergency Petition” in which

he again challenges his incarceration, and asks the Court to vacate his

judgment and immediately release him from custody. [Doc. 8]. The

“Emergency Petition” is construed as an Amended Petition for Writ of

Habeas Corpus pursuant to § 2254.

The § 2254 Petition has already been dismissed and the Amended

Petition does not establish that the Fourth Circuit has granted the Petitioner

authorization to file a second or successive habeas petition. There is no

active case or controversy before the Court, and the Amended Petition is

therefore dismissed. See e.g. Sevilla-Briones v. Hooks, No. 3:20-cv-00059-

MR, 2020 WL 6587663 W.D.N.C. Nov. 10, 2020) (denying a motion to

amend in a closed § 2254 case); Rudisill v. United States, No. 1:09CR262-

3-T, 2009 WL 2517013, at * 1 (W.D.N.C. Aug. 14, 2009) (in a § 2255 case,

noting that “this Court is unaware of any authority allowing Petitioner to

amend a closed case.”).

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases,

the Court declines to issue a certificate of appealability as Petitioner has not

made a substantial showing of a denial of a constitutional right. 28 U.S.C. §

2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to

satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would

find the district court’s assessment of the constitutional claims debatable or

wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding that when relief

is denied on procedural grounds, a petitioner must establish both that the

correctness of the dispositive procedural ruling is debatable, and that the

petition states a debatably valid claim of the denial of a constitutional right).

ORDER

IT IS, THEREFORE, ORDERED that Petitioner's “Emergency Petition

for Constitutional Rights Protected by the 5" and 8" [amendments] Articles

to the Bill of Rights of [1791]” [Doc. 8] is construed as an Amended Petition

for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and is DISMISSED.

IT IS FURTHER ORDERED that the Court declines to issue a

certificate of appealability pursuant to Rule 11(a) of the Rules Governing

Section 2254 Cases.

IT IS SO ORDERED. Signed: November 18, 2021

Se ee

Chief United States District Judge ES

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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