SMITH v. STATE OF NEW JERSEY et al

Filing 10

MEMORANDUM AND ORDER, ORDERED that petitioner's application to proceed IFP is granted; ORDERED that the Clerk shall replace the State of New Jersey with Stephen D'Ilio as the respondent in this case; ORDERED that the Clerk shall serve the amended habeas petition 8 and this Order on respondents by certified mail, etc.; ORDERED that respondent D'Ilio shall file a full answer within 45 days, etc.; ORDERED that petitioner may file and serve a reply to the answer within 45 days of petitioner's receipt of same, etc. Signed by Judge Robert B. Kugler on 1/15/2015. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JERMAINE SMITH,
:
:
Petitioner,
:
Civ. No. 14-5997 (RBK)
:
v.
:
MEMORANDUM AND ORDER
:
STATE OF NEW JERSEY,
:
:
Respondent.
:
_________________________________________ :
Petitioner is a state prisoner proceeding pro se with an amended petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. On December 5, 2014, the Court sent petitioner a
notice pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). The notice gave petitioner
thirty days in which to inform the Court whether he wished to have his pending amended § 2254
habeas petition considered as his one and only complete § 2254 habeas petition or withdraw his
pending amended petition in order to file a complete petition at a later time provided the petition
is filed within the one-year statute of limitations in 28 U.S.C. § 2244(d). The December 5, 2014
Order also instructed petitioner that if he did not respond to the Order within thirty days, his
pending amended petition would be considered his one and only complete § 2254 habeas
petition. More than thirty days have elapsed and petitioner has not responded to the December 5,
2014 Order. Therefore, the pending amended petition will be considered petitioner’s one and
only complete § 2254 petition.
Petitioner’s application to proceed in forma pauperis will be granted based on the
information provided therein. 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

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in his amended habeas petition. However, the proper respondent in this case is the custodian of
petitioner, see Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004), Stephen D’Ilio, who is the
administrator of the New Jersey State Prison where petitioner is incarcerated. The Clerk will be
ordered to replace him as the respondent in this case.
Accordingly, IT IS on this 15th day of January, 2015,
ORDERED that petitioner’s application to proceed in forma pauperis is granted; and it is
further
ORDERED that the Clerk shall replace the State of New Jersey with Stephen D’Ilio as
the respondent in this case; and it is further
ORDERED that the Clerk shall serve a copy of the amended habeas petition (Dkt. No. 8.)
and this Order on respondent D’Ilio and the Attorney General for the State of New Jersey by
certified mail, return receipt requested, with all costs of service advanced by the United States,
and it is further
ORDERED that respondent D’Ilio shall file a full and complete answer to the amended
habeas petition within forty-five (45) days of the entry of this Order; and it is further
ORDERED that respondent D’Ilio’s answer shall address the allegations and grounds of
the amended 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 respondent D’Ilio shall attach to the answer parts of the transcript that he
considers relevant and, if a transcript cannot be obtained, respondent D’Ilio may submit a

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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 respondent D’Ilio 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
ORDERED that respondent D’Ilio shall file the answer, the index of exhibits, and the
exhibits electronically; and it is further
ORDERED that respondent D’Ilio 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 and serve 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,
respondent D’Ilio shall electronically file a written notice of same with the Clerk; and it is finally

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ORDERED that the Clerk shall serve this Memorandum and Order on petitioner by
regular U.S. mail.

s/Robert

B. Kugler
ROBERT B. KUGLER
United States District Judge

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