JONES v. STATE OF NEW JERSEY et al

Filing 8

MEMORANDUM AND ORDER: Clerk shall replace the State of New Jersey with Robert Chetirkin as the respondent in this case; denying without prejudice 7 application for Pro Bono Counsel; respondents shall file a full and complete answer to the habeas petition within forty-five (45) days of the entry of this Order. Signed by Judge Robert B. Kugler on 10/29/2015. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
BYRON K. JONES, Jr.,
:
:
Civ. No. 13-0132 (RBK)
Petitioner,
:
:
v.
:
MEMORANDUM AND ORDER
:
STATE OF NEW JERSEY, et al.,
:
:
Respondents.
:
_________________________________________ :
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. On January 31, 2013, this matter was administratively terminated
as petitioner had neither paid the filing fee of $5.00 nor had he submitted an application to
proceed in forma pauperis. Subsequently, petitioner paid the filing fee and this matter was
reopened.
On June 18, 2015, petitioner was given his Mason v. Myers, 208 F.3d 414 (3d Cir. 2000)
notice. Petitioner responded in July, 2015 to the Mason notice that he wanted his habeas petition
ruled upon as is. On August 4, 2015, this matter was reassigned to this Court by Chief Judge
Simandle.
Upon screening the petition, the Court has determined that dismissal of the petition
without an answer and the record is not warranted. See Rule 4 of Rules Governing 28 U.S.C. §
2254 Cases.
Petitioner names the State of New Jersey as the respondent in this action. However, the
proper respondent in this case is the custodian of the petitioner. See Rumsfeld v. Padilla, 542
U.S. 426, 435 (2004). Petitioner is now incarcerated at the Northern State Prison in Newark,

New Jersey. The administrator of that facility is Robert Chetirkin. Therefore, the Clerk will be
ordered to replace the State of New Jersey with Robert Chetirkin as the respondent in this case.
Petitioner has also filed a motion to appoint pro bono counsel. Petitioner does not have a
constitutional right to counsel in habeas proceedings. See Reese v. Fulcomer, 946 F.2d 247, 263
(3d Cir. 1991), superseded on other grounds by statute, 28 U.S.C. § 2254. However, 18 U.S.C. §
3006A(a)(2)(B) provides that the court has discretion to appoint counsel where “the court
determines that the interests of justice so require . . .” In Reese, the Third Circuit explained that
in determining whether counsel should be appointed, a court “must first decide if petitioner has
presented a nonfrivolous claim and if the appointment of counsel will benefit the petitioner and
the court. Factors influencing a court’s decision include the complexity of the factual and legal
issues in the case, as well as the pro se petitioner’s ability to investigate facts and present
claims.” Reese, 946 F.2d at 263-64.
In this case, the Court finds that the appointment of counsel is not warranted at this time.
The claims raised by petitioner do not appear overly complex and it does not appear at this time
that the appointment of counsel will benefit the Court. Therefore, petitioner’s motion for the
appointment of counsel will be denied without prejudice.
Accordingly, IT IS this 29th day of October , 2015,
ORDERED that the Clerk shall replace the State of New Jersey with Robert Chetirkin as
the respondent in this case; and it is further
ORDERED that petitioner’s motion to appoint pro bono counsel (Dkt. No. 7) is denied
without prejudice; and it is further

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ORDERED that the Clerk shall serve a copy of the petition (Dkt. No. 1) and this Order
on the respondents by regular U.S. mail, with all costs of service advanced by the United States,
and it is further
ORDERED that respondents shall file a full and complete answer to the habeas petition
within forty-five (45) days of the entry of this Order; and it is further
ORDERED that respondents’ answer shall address the allegations and grounds of the
habeas petition, and shall adhere to the requirements of Rule 5 of the Rules Governing 28 U.S.C.
§ 2254 Cases; and it is further
ORDERED that the answer shall indicate what transcripts (of pretrial, trial, sentencing, or
post-conviction proceedings) are available, when they can be furnished, and what proceedings
have been recorded but not transcribed; and it is further
ORDERED that respondents shall attach to the answer parts of the transcript that the
respondents consider relevant and, if a transcript cannot be obtained, respondents may submit a
narrative summary of the evidence, see Rule 5(c) of the Rules Governing 28 U.S.C. § 2254
Cases; and it is further
ORDERED that respondents shall file with the answer a copy of: (1) any brief that
petitioner submitted in an appellate court contesting the conviction or sentence, or contesting an
adverse judgment or order in a post-conviction proceeding; (2) any brief that the prosecution
submitted in an appellate court relating to the conviction or sentence; and (3) the opinions and
dispositive orders relating to the conviction or the sentence, see Rule 5(d) of the Rules
Governing 28 U.S.C. § 2254 Cases; and it is further
ORDERED that the answer shall contain an index of exhibits; and it is further

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ORDERED that respondents shall file the answer, the index of exhibits, and the exhibits
electronically; and it is further
ORDERED that respondents shall serve the answer, the index of exhibits, and the
exhibits upon petitioner, see Rule 5 of the Rules Governing 28 U.S.C. § 2254 Cases; FED. R.
CIV. P. 10(c); Sixta v. Thaler, 615 F.3d 569, 569 (5th Cir. 2010); Thompson v. Greene, 427 F.3d
263, 269 (4th Cir. 2005); Pindale v. Nunn, 248 F. Supp. 2d 361, 367 (D.N.J. 2003); and it is
further
ORDERED that petitioner may file a reply to the answer within forty-five (45) days of
petitioner’s receipt of same, see Rule 5(e) of the Rules Governing 28 U.S.C. § 2254 Cases; and it
is further
ORDERED that within seven (7) days of petitioner's release, be it on parole or otherwise,
respondents shall electronically file a written notice of same with the Clerk; and it is finally
ORDERED that the Clerk shall serve this Order on petitioner by regular U.S. mail.

s/Robert B. Kugler___________
ROBERT B. KUGLER
United States District Judge

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