Jarosz v. Essex County Superior Court
Filing
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Judge Rya W. Zobel: ORDER entered. MEMORANDUM AND ORDER. The Court will not construe Petitioners pleading (Docket No. 1) as a habeas petition pursuant to 28 U.S.C. § 2254. If Petitioner wishes to proceed with this action, within 21 days of the date of this Memorandum and Order, she shall submit a completed habeas petition on the standard § 2254 form (or on her own form), failing which, this action shall be dismissed without prejudice. Within 21 days of the date of this Memorandum an d Order, Petitioner shall either pay the $5.00 filing fee for habeas actions, or she shall submit a completed Application to Proceed in District Court Without Prepaying Fees and Costs along with her certified prison account statement. The Clerk mailed a copy of this Memorandum and Order to petition with a Section 2254 form and an Application to Proceed in District Court Without Prepaying Fees and Costs.(PSSA, 4)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 12-12098-RWZ
BARBARA A. JAROSZ
v.
ESSEX COUNTY SUPERIOR COURT
MEMORANDUM AND ORDER
November 26, 2012
ZOBEL, D.J.
BACKGROUND
On November 5, 2012, Petitioner Barbara Jarosz (“Jarosz”), a prisoner at South
Middlesex Correctional Center, filed a two-page, handwritten pleading titled “Motion for
Habeas Corpus § 2255 from State Confinement.” See Docket No. 1. The pleading
indicates that she is challenging her state conviction in the case Commonwealth v.
Jarosz, Essex Superior Court Docket No. 2010-00733. Id. Jarosz seeks to have the
court “issue an order releasing her from illegal confinement.” Id. She contends that “the
integrity of the entire criminal justice system has come under scrutiny due to the Annie
Dookhan scandal at the state crime lab.” Id. She complains that her sentence is
“illegal” and seeks appointment of counsel. Id.
DISCUSSION
Although Jarosz styles her pleading as brought pursuant to 28 U.S.C. § 2255,1
the Court presumes that she seeks to collaterally challenge her state conviction
1
A writ of habeas corpus pursuant to 28 U.S.C. § 2255 provides the primary
means of collateral attack on a federal sentence. Here, Jarosz seeks to attack her state
sentence.
pursuant to 28 U.S.C. § 2254. However, in order to avoid any prejudice to Jarosz, the
Court will not construe the pleading itself as the § 2254 habeas petition notwithstanding
that Jarosz attempts to assert a habeas claim in the body of the pleading. Rather, this
Court will afford Jarosz an opportunity to file a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254 that includes all of claims that she wishes to assert in this
action, and names the “proper respondent” to a habeas petition (the Essex County
Superior Court is not the proper respondent). See Rule 2(a) of the Rules Governing
Section 2254 Cases (“...the petition must name as respondent the state officer who has
custody.”); Rumsfeld v. Padilla, 542 U.S. 426, 439 (2004) (immediate custodian of
petitioner is proper respondent in habeas action). Additionally, Jarosz’ pleading fails to
satisfy the requirements for filing a habeas petition because it is does not allege
exhaustion of her state court remedies pursuant to § 2254(b)(1)(A), and is not signed
under the penalty of perjury. See Rule 2(c)(5) of the Rules Governing Section 2254
Cases. Finally, Jarosz has failed to pay the filing fee for habeas petitions or obtain a
waiver thereof in accordance with the requirements of Rule 3(a)(2) of the Rules
Governing Section 2254 cases (requiring the submission of an affidavit required by 28
U.S.C. § 1915).2
Accordingly, in order to facilitate Jarosz’ preparation of a § 2254 habeas petition,
2
A party filing a Section 2254 habeas action in this Court must either (1) pay the
$5.00 filing fee for habeas corpus actions; or (2) seek leave to proceed without
prepayment of the filing fee. See 28 U.S.C. § 1914(a) (fees); 28 U.S.C. § 1915
(proceedings in forma pauperis). The motion for leave to proceed without prepayment
of the filing fee must be accompanied by “a certificate from the warden or other
appropriate officer of the place of confinement showing the amount of money or
securities that the petitioner has in any account in the institution.” Rule 3(a)(2) of the
Rules Governing Section 2254 cases.
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the Clerk is directed to send to Jarosz the standard form for the filing of habeas petitions
pursuant to 28 U.S.C. § 2254. If Jarosz wishes to proceed with this action, she shall
complete this form in its entirety (or shall submit her own habeas form containing all
necessary information, including all grounds for habeas relief she wishes to assert), and
file a habeas petition signed under the penalties of perjury within twenty-one (21) days
of the date of this Memorandum and Order. Within that time period, Jarosz also shall
satisfy the filing fee requirements of this Court, and the Clerk shall send her an
Application to Proceed in District Court Without Prepaying Fees and Costs for
completion. Failure to comply with the directives of the Court will result in the dismissal
of this action without prejudice.
ORDER
Based on the foregoing, it is hereby Ordered that:
1.
The Court will not construe Petitioner’s pleading (Docket No. 1) as a habeas
petition pursuant to 28 U.S.C. § 2254. If Petitioner wishes to proceed with this
action, within 21 days of the date of this Memorandum and Order, she shall
submit a completed habeas petition on the standard § 2254 form (or on her own
form), failing which, this action shall be dismissed without prejudice;
2.
Within 21 days of the date of this Memorandum and Order, Petitioner shall either
pay the $5.00 filing fee for habeas actions, or she shall submit a completed
Application to Proceed in District Court Without Prepaying Fees and Costs along
with her certified prison account statement; and
3.
The Clerk shall send to Petitioner the standard § 2254 form and an Application to
Proceed in District Court Without Prepaying Fees and Costs.
SO ORDERED.
November 26, 2012
DATE
/s/ Rya W. Zobel
RYA W. ZOBEL
UNITED STATES DISTRICT JUDGE
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