AMIN v. DAVIS et al
Filing
10
MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 11/19/2012. (tf, n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RASHEED AMIN,
Petitioner,
v.
EVELYN DAVIS, et al.,
Respondents.
:
:
:
:
:
:
:
:
:
:
:
Civil Action No. 11-3312 (JBS)
MEMORANDUM OPINION
SIMANDLE, Chief Judge:
1.
Petitioner filed a Petition for a Writ of Habeas Corpus
under 28 U.S.C. § 2254 challenging a judgment of conviction
entered in the Superior Court of New Jersey, Cape May County, on
April 3, 2008.
2.
(Dkt. 1.)
By Order entered August 5, 2011, this Court ordered
Respondents to file and serve an answer and relevant portions of
the state court record.
3.
(Dkt. 4.)
On September 1, 2011, Respondents filed an Answer and
exhibits from the state court record, which Respondents
erroneously docketed as “Amended Complaint against Rasheed Amin.”
(Dkt. 8.)
Respondents did not file a certification of service of
same upon Petitioner.
4.
On July 25, 2012, Petitioner filed a motion for an order
to compel Respondents to comply with the Order entered August 5,
2011.
Petitioner also filed a proof of service, proposed form of
order, and his certification supporting the motion.
(Dkt. 9.)
In his certification, Petitioner Amin asserts:
“Since November
2011 I have written respondents letters requesting that they
answer my habeas corpus petition.
answers to my letters.”
I have never received any
(Id. at 5-6.)
5.
Respondents did not respond to Amin’s motion.
6.
Habeas Rule 5 expressly requires a § 2254 respondent to
file an answer, when so ordered, and to attach to the answer
relevant transcripts and other documents from the underlying
state court record.
See 28 U.S.C. § 2254 Rule 5.
The Advisory
Committee’s Note to Habeas Rule 5 states that, although Habeas
Rule 5 does not indicate who the answer is to be served on, “it
necessarily implies that it will be mailed to the petitioner (or
to his attorney if he has one).”
Advisory Committee’s 1976 Notes
on Habeas Rule 5.
7.
This Court finds that Habeas Rule 5 required Respondents
to serve the Answer and the exhibits filed with the Answer on
Petitioner.
8.
Habeas Rule 11 provides that the Federal Rules of Civil
Procedure, “to the extent that they are not inconsistent with
these rules, may be applied, when appropriate to petitions filed
under these rules.”
28 U.S.C. § 2254 Rule 11.
Rule 10(c) of the
Federal Rules of Civil Procedure provides that “[a] copy of a
written instrument that is an exhibit to a pleading is a part of
the pleading for all purposes,” and Rule 5(a) requires service of
2
every pleading subsequent to the original complaint, as well as
all papers filed with the court, upon all parties not in default.
9.
This Court further finds that the Federal Rules of Civil
Procedure required Respondents to serve the Answer and exhibits
upon Petitioner.
10.
At least two circuits have held that the Habeas Rules
and the Rules of Civil Procedure require respondents in a § 2254
case to serve the answer and exhibits upon petitioners.
See
Sixta v. Thaler, 615 F.3d 569, 569 (5th Cir. 2010) (“We conclude
that the applicable procedural rules require the respondent in a
§ 2254 proceeding to serve both the answer and any exhibits
attached thereto on the habeas petitioner, and we therefore do
not reach the constitutional question presented”); Thompson v.
Greene, 427 F.3d 263, 269 (4th Cir. 2005) (“Thus, the applicable
rules mandate that an answer in a habeas corpus proceeding [under
§ 2254], along with all of its exhibits, must be served on a
petitioner”).1
11.
In Pindale v. Nunn, 248 F. Supp. 2d 361 (D.N.J. 2003),
this Court held “that service of the documents filed with and
1
The Fourth Circuit further opined: “The constitutionality
of the Habeas Rules would be placed in serious question if they
were read to exempt habeas corpus proceedings from the general
service requirements . . . . Similarly, to read the Habeas Rules
as permitting a respondent to file exhibits that he fails to serve
upon a habeas corpus petitioner would essentially allow him to
communicate ex parte with the court, contrary to one of the basic
tenets of our adversary system.” Thompson, 427 F.3d at 269 n.7.
3
attached to an answer is required by Habeas Rule 5; moreover,
even if service were not explicitly required by Habeas Rule 5,
Rules 12(a) and 5(a) of the Federal Rules of Civil Procedure
apply to § 2254 cases through Habeas Rule 11[], and compel this
result.”
12.
Id. at 367.
Because Habeas Rule 5, as well as the Federal Rules of
Civil Procedure, require service of the Answer and exhibits filed
with the Answer upon Petitioner, this Court will grant
Petitioner’s motion and direct Respondents to file the Answer and
exhibits, and to serve on Petitioner hard copies of the Answer
and exhibits filed with the Answer.
13.
This Court will also extend Petitioner’s time to file a
reply to the Answer until 45 days after he receives it.
14.
An appropriate Order accompanies this Memorandum
Opinion.
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief Judge
Dated:
November 19, 2012
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?