DRUMHEISER v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 2

MEMORANDUM OPINION. Signed by Judge Noel L. Hillman on 8/14/2014. (nz, )N.M.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

STEVEN DRUMHEISER,
Petitioner,
v.
NEW JERSEY DEPARTMENT OF
CORRECTIONS, et al.,
Respondents.

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Civil Action No. 14-5043(NLH)

MEMORANDUM OPINION

APPEARANCES
Steven Drumheiser
Southern State Correctional Facility
4295 Route 47
Unit 5
Delmont, NJ 08314
Petitioner pro se

HILLMAN, District Judge
Petitioner Steven Drumheiser, a prisoner confined at
Southern State Correctional Facility in Delmont, New Jersey, has
filed a Petition for writ of habeas corpus, pursuant to 28
U.S.C. § 2241, challenging a disciplinary proceeding which
resulted in the loss of 180 days of good-conduct time.
Petitioner seeks leave to proceed in forma pauperis.

The Filing Fee
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 corpus and seeks
to proceed in forma pauperis, that petition 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 prisoner’s institutional
account during the six-month period prior to the date of the
certification.

See also Rule 3(a)(2) of the Rules Governing

Section 2254 Cases in the United States District Courts 1
(requiring a habeas petitioner who desires to proceed in forma
pauperis to accompany his affidavit with “a certificate from the
warden or other appropriate officer of the place of confinement
showing the amount of money or securities that the petitioner

1

Pursuant to Rule 1(b) of the Rules Governing § 2254 Cases, this
Court may apply any or all of the Rules Governing § 2254 Cases
to other types of habeas corpus petitions. In any event, as
discussed more fully below, this Petition is more properly
construed as a § 2254 petition.
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has in any account in the institution”). 2

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).

Petitioner

did submit an application for leave to proceed in forma
pauperis; however, the application is deficient.

It includes a

signed account certification form, the signature on which is
illegible, but no actual account information as required by
Local Civil Rule 81.2(b).

Accordingly, this Court will deny

without prejudice the application for leave to proceed in forma
pauperis.
To the extent Petitioner asserts that institutional
officials have refused to provide the required account
certification, any such assertion must be supported by an
affidavit detailing the circumstances of Petitioner’s request
for an account certification and the institutional officials’
refusal to comply, including the dates of such events and the
names of the individuals involved.

2

As set forth in Rule 3(a)(2) of the Rules Governing § 2254
Cases and Local Civil Rule 81.2(c), the obligation to provide
the required certification is mandatory.
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The Form of the Petition
Petitioner has submitted a Petition asserting jurisdiction
under the general habeas corpus statute, 28 U.S.C. § 2241.

As a

prisoner confined pursuant to the judgment of a state court,
however, he must proceed under 28 U.S.C. § 2254, following
exhaustion of his state remedies.

See 28 U.S.C. § 2254(a),

(b)(1)(A).
Pursuant to Local Civil Rule 81.2:
Unless prepared by counsel, petitions to this Court
for a writ of habeas corpus ... shall be in writing
(legibly handwritten in ink or typewritten), signed by
the petitioner or movant, on forms supplied by the
Clerk.
L.Civ.R. 81.2(a).

Petitioner did not use the habeas form

supplied by the Clerk for Section 2254 petitions, i.e., “AO241
(modified):

DNJ-Habeas-008 (Rev. 01-2014).”

In addition, the Court notes its concern that Petitioner
has not fully exhausted his state remedies before coming to
federal court, as required by 28 U.S.C. § 2254(b)(1).
Petitioner alleges that the challenged disciplinary proceeding
was based on an infraction that occurred on July 30, 2014.
Petitioner states that he appealed to the Administrator, see
N.J. Adm. Code 10A:4-11.1, who denied relief on August 4, 2014,
but does not state whether he has exhausted his state judicial
remedies.

See, e.g., N.J. Ct. R. 2:2-3(a)(2) (permitting

appeal, to the Appellate Division of the New Jersey Superior
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Court, from final decisions of state administrative agencies),
cited and construed in Brown v. Fauver, 819 F.2d 395, 397 (3d
Cir. 1987) and Lewis v. Dept. of Corrections, 2010 WL 2011014
(N.J. Super. App. Div. May 18, 2010).
August 5, 2014.

The Petition is dated

The one-day gap between the Administrator’s

denial of Petitioner’s administrative appeal and the submission
of this Petition compels the conclusion that Petitioner has not
pursued any state judicial remedies.

Petitioner does not allege

any facts suggesting that the state judicial appeal remedies are
either unavailable or ineffective to protect his rights.
CONCLUSION
For the reasons set forth above, Petitioner’s application
for leave to proceed in forma pauperis will be denied without
prejudice and the Clerk of the Court will be ordered to
administratively terminate the Petition without prejudice. 3
Petitioner will be granted leave to apply to re-open within 30

3

Such an administrative termination is not a “dismissal” for
purposes of the statute of limitations, and if the case is reopened pursuant to the terms of the accompanying Order, it is
not subject to the statute of limitations time bar if it was
originally filed timely. See Houston v. Lack, 487 U.S. 266
(1988) (prisoner mailbox rule); Burns v. Morton, 134 F.3d 109
(3d Cir. 1998) (applying Houston mailbox rule to the filing of
federal habeas petitions); Woodson v. Payton, 503 F. App’x 110,
112 n.3 (3d Cir. 2012) (citing both Houston and Burns); Papotto
v. Hartford Life & Acc. Ins. Co., 731 F.3d 265, 275-76 (3d Cir.
2013) (collecting cases and explaining that a District Court
retains jurisdiction over, and can re-open, administratively
closed cases).
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days by submitting a complete signed amended § 2254 habeas
petition on the appropriate § 2254 form and by either prepaying
the filing fee or submitting a complete application for leave to
proceed in forma pauperis.

In any amended petition, Petitioner

must address the threshold question whether he has properly
exhausted his state remedies as required by 28 U.S.C.
§ 2254(b)(1).
An appropriate Order will be entered.

At Camden, New Jersey

Dated:

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

August 14, 2014

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