AMODIO v. WARREN

Filing 2

OPINION. Signed by Judge Noel L. Hillman on 9/30/2013. (nz, )n.m.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DAVID AMODIO,
Petitioner,
v.
CHARLES E. WARREN, JR.,
et al.,
Respondents.

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Civil Action No. 13-4355 (NLH)

MEMORANDUM OPINION

APPEARANCES:
David Amodio
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Petitioner pro se

HILLMAN, District Judge
Petitioner David Amodio, a convicted and sentenced prisoner
confined at New Jersey State Prison in Trenton, New Jersey, has
filed a Petition for Stay and Abeyance, [1], in order to exhaust
in state court certain challenges to his conviction of felony
murder and related offenses under state law.

Petitioner has not

filed a petition for writ of habeas corpus under 28 U.S.C.
§ 2254.

A.

The Filing Fee Requirement
The filing fee for a petition for writ of habeas corpus is

$5.00.

Pursuant to Local Civil Rule 54.3(a), the filing fee is

required to be paid at the time the petition is presented for
filing.

Pursuant to Local Civil Rule 81.2(b), whenever a

prisoner submits a petition for writ of habeas and seeks to
proceed in forma pauperis, that petitioner must submit (a) an
affidavit setting forth information which establishes that the
petitioner is unable to pay the fees and costs of the
proceedings, and (b) a certification signed by an authorized
officer of the institution certifying (1) the amount presently
on deposit in the prisoner’s prison account and, (2) the
greatest amount on deposit in the prisoners institutional
account during the six-month period prior to the date of the
certification.

If the institutional account of the petitioner

exceeds $200, the petitioner shall not be considered eligible to
proceed in forma pauperis.

Local Civil Rule 81.2(c).

Petitioner did not prepay the $5.00 filing fee for a habeas
petition as required by Local Civil Rule 54.3(a), nor did
Petitioner submit an application for leave to proceed in forma
pauperis.

Accordingly, this matter will be administratively

terminated for failure to satisfy the filing fee requirement.
Petitioner will be granted leave to apply to reopen by either
paying the filing fee or submitting a complete application for

leave to proceed in forma pauperis.
To the extent Petitioner asserts that institutional
officials have refused to provide the certified account
statement, any such assertion must be supported by an affidavit
detailing the circumstances of Petitioner’s request for a
certified account statement and the institutional officials’
refusal to comply, including the dates of such events and the
names of the individuals involved.
B.

The Request for a Stay
Petitioner has not filed a petition for writ of habeas

corpus, but has filed only a request for a stay.
Petitioner states that he was convicted in the Superior
Court of New Jersey, Camden County, of felony murder, in
violation of N.J.S.A. 2C:11-3A(1) and (2), and related offenses.
During the pendency of his direct appeals, he was re-sentenced
on June 22, 2007, to a sentence of seven years on the felony
murder count, with an 85% mandatory minimum period of parole
ineligibility, followed by a ten-year sentence on the remaining
counts.

On September 7, 2007, his petition for certification

was denied by the Supreme Court of New Jersey.

See State v.

Amodio, 390 N.J. Super. 313 (App. Div.), certif. denied, 192
N.J. 477 (2007).
On October 19, 2007, he filed a petition for postconviction relief in state court.

The state court denied relief

and Petitioner appealed.

Those proceedings were concluded on

May 15, 2013, when the Supreme Court of New Jersey denied
certification.

See State v. Amodio, No. A-4350-10T1, 2012 WL

5381769 (N.J. Super. App. Div. Nov. 5, 2012), certif. denied,
213 N.J. 538 (2013).
On July 5, 2013, Petitioner submitted this Petition for
stay, but submitted no actual petition for writ of habeas
corpus.

As grounds for the request for stay, Petitioner states

that he “has other constitutional claims which must be addressed
in the State court.

Specifically, MOTION FOR NEW TRIAL BASED ON

NEWLY DISCOVERED EVIDENCE.

See petitioner’s Appendix.”

(Petition for Stay, ¶ 17.)

The referenced Appendix consists of

a copy of an undated newspaper article describing how defense
attorneys around the country “are using advances in the science
of fire investigation to challenge arson convictions,” (Petition
for Stay, Appendix, New science being used to fight convictions,
The Trentonian), and a copy of a letter to Petitioner from his
counsel, dated March 30, 2012, referring to the same newspaper
article, and advising Petitioner that he may wish to pursue the
issue regarding new science in arson determinations through a
motion for new trial, based on newly discovered evidence, after
the conclusion of his direct appeal from the denial of postconviction relief.
A state prisoner applying for a writ of habeas corpus in

federal court must first “exhaust[] the remedies available in
the courts of the State,” unless “there is an absence of
available State corrective process[] or ... circumstances exist
that render such process ineffective ... .”
§ 2254(b)(1).

28 U.S.C.

See also Rose v. Lundy, 455 U.S. 509, 515 (1982);

Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997), cert.
denied, 532 U.S. 919 (2001) (finding that “Supreme Court
precedent and the AEDPA mandate that prior to determining the
merits of [a] petition, [a court] must consider whether
[petitioner] is required to present [his or her] unexhausted
claims to the [state’s] courts”).
In recognition of the complexities facing prisoners who
must exhaust their state remedies while complying with the oneyear federal limitations period for § 2254 habeas petitions, see
28 U.S.C. § 2244(d)(1), the Court of Appeals for the Third
Circuit has held that “[s]taying a habeas petition pending
exhaustion of state remedies is a permissible and effective way
to avoid barring from federal court a petitioner who timely
files a mixed petition [containing both exhausted and exhausted
claims].”

Crews v. Horn, 360 F.3d 146, 151 (3d Cir. 2004).

Indeed, the Court of Appeals for the Third Circuit has held that
“when an outright dismissal could jeopardize the timeliness of a
collateral attack, a stay is the only appropriate course of
action.”

Crews, 360 F.3d at 154.

The Supreme Court, however,

has somewhat limited the stay-and-abeyance rule announced in
Crews.
[S]tay and abeyance should be available only in
limited circumstances. ... [S]tay and abeyance is
only appropriate when the district court determines
there was good cause for the petitioner’s failure to
exhaust his claims first in state court. Moreover,
even if a petitioner had good cause for that failure,
the district court would abuse its discretion if it
were to grant him a stay when his unexhausted claims
are plainly meritless.
...
On the other hand, it likely would be an abuse of
discretion for a district court to deny a stay and to
dismiss a mixed petition if the petitioner had good
cause for his failure to exhaust, his unexhausted
claims are potentially meritorious, and there is no
indication that the petitioner engaged in
intentionally dilatory litigation tactics. In such
circumstances, the district court should stay, rather
than dismiss, the mixed petition. ... For the same
reason, if a petitioner presents a district court with
a mixed petition and the court determines that stay
and abeyance is inappropriate, the court should allow
the petitioner to delete the unexhausted claims and to
proceed with the exhausted claims if dismissal of the
entire petition would unreasonably impair the
petitioner’s right to obtain federal relief.
Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (citations
omitted).

A District Court can utilize the “stay and abeyance”

procedure even where a habeas petition presents only unexhausted
claims.

See Heleva v. Brooks, 581 F.3d 187 (3d Cir. 2009).

Here, however, Petitioner has failed to file any habeas
petition, and the allegations of his Petition for Stay are not
sufficient to assert a claim that he is in custody “in violation

of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a).

Petitioner refers to only one claim, his

asserted right to a new trial based on newly discovered
evidence, but fails to describe the nature of the new evidence,
or how that evidence would justify a new trial, or how denial of
a new trial would violate the Constitution or laws of the United
States.

Accordingly, this Court cannot construe the Petition

for stay as a petition for writ of habeas corpus or act to stay
proceedings in this Court.

See Rashid v. New Jersey, Civil

Action No. 11-7033, 2011 WL 6130420 (Dec. 7, 2011) (collecting
cases).

Cf. Anderson v. Pennsylvania Attorney General, 82 F.

App’x 745, 749 (3d Cir. 2003) (holding that a district court can
exercise jurisdiction over a motion for an extension of time to
file a § 2254 petition where the allegations “are sufficient to
present a case or controversy”).
To the extent Petitioner seeks to re-open this matter, in
response to the administrative termination for failure to pay
the filing fee, he must submit a petition for writ of habeas
corpus in order to invoke the jurisdiction of this Court.
Further, if he requests a stay, he must explain how a stay is
appropriate under the Rhines v. Weber standard.
C.

Notice Pursuant to Mason v. Meyers
This Court is required by Mason v. Meyers, 208 F.3d 414 (3d

Cir. 2000), to notify Petitioner of the consequences of filing a

Petition for writ of habeas corpus under 28 U.S.C. § 2254.
Prisoners challenging the legality of their detention
pursuant to the judgment of a State court must marshal in one
§ 2254 Petition all the arguments they have to collaterally
attack the State judgment and, except in extremely limited
circumstances, file this one all-inclusive Petition within one
year of the date on which the judgment of conviction becomes
final by the conclusion of direct review or the expiration of
the time for seeking such review.

See 28 U.S.C. § 2244(d).

Once Petitioner has filed his one all-inclusive petition, he
will lose the ability to file a second or successive petition
under § 2254, absent certification by the Court of Appeals for
the Third Circuit and extraordinary circumstances.

Accordingly,

should Petitioner seek to re-open this matter, and to file a
petition for writ of habeas corpus under 28 U.S.C. § 2254, that
petition should contain all of Petitioner’s challenges to his
conviction, whether or not exhausted in state court.
CONCLUSION
For the reasons set forth above, the Clerk of the Court
will be ordered to administratively terminate the Petition
without prejudice.

Petitioner will be granted leave to apply to

re-open within 30 days, by either prepaying the filing fee or
submitting a complete application for leave to proceed in forma
pauperis.

Any such application to re-open must be accompanied

by Petitioner’s one all-inclusive petition for writ of habeas
corpus, pursuant to 28 U.S.C. § 2254 and, to the extent
Petitioner seeks to stay proceedings, an explanation of the
grounds for stay that addresses the standard set forth in Rhines
v. Weber.
An appropriate Order will be entered.

At Camden, New Jersey

Dated: September 30, 2013

s/ Noel L. Hillman
Noel L. Hillman
United States District Judge