WORTHY v. STATE OF NEW JERSEY
MEMORANDUM and ORDER case is DISMISSED. ORDERED Petitioner may reopen this matter by submitting the $5 filing fee or a completed IFP application. ORDERED Clerk shall send Plaintiff a blank IFP application and a copy of this Memorandum and Order. Signed by Judge Renee Marie Bumb on 3/3/2015. (nz, )n.m.
NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
State of New Jersey,
Civil Action No. 15-1333(RMB)
MEMORANDUM AND ORDER
BUMB, District Judge:
On February 20, 2015, Petitioner, an inmate incarcerated in
South Woods State Prison in New Jersey, purported to remove his
pending post-conviction motion from state court, and submitted
his claim in this Court.
(Doc. No. 1.)
conviction proceeding was not actually removed here by the state
court; instead, this matter was opened based on Petitioner’s
original filing in this Court.
Petitioner alleged federal
subject matter jurisdiction over his sentencing claim under 28
U.S.C. ¶ 1331, based on his reliance on the U.S. Supreme Court
case Blakely v. Washington, 542 U.S. 296 (2004).
Petitioner self-styled his complaint, rather than using
the appropriate form, “Petition for Relief From a Conviction or
Sentence By a Person in State Custody Under 28 U.S.C. 2254.”
Petitioner did not pay the filing fee or submit an
application to proceed without prepayment of the filing fee in
See Local Rule 5.1(f)(any papers submitted to the
Clerk without payment of such fees fixed by statute or by the
Judicial Conference of the United States will be marked as
received but not filed.)
Thus, the Court will dismiss this
matter, but Petitioner will be allowed to file a new case by
paying the five dollar filing fee for a writ of habeas corpus1 or
by completing the form “Application to Proceed In Forma Pauperis
in a Habeas Case.”
Although Petitioner may open a new case, he should be aware
that the Court must summarily dismiss a petition if it plainly
appears that petitioner is not entitled to relief in the
See Rule 4 of the Rules Governing Section 2254
Cases in the United States District Courts.
28 U.S.C. § 2254(a)
provides federal habeas review for a person in custody pursuant
to the judgment of a State court on the ground that he is in
custody in violation of the Constitution or laws or treaties of
the United States.
However, an application for a writ of habeas
The filing fee is established by 28 U.S.C. § 1914(a).
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted unless it appears that-(A) the applicant has exhausted the
remedies available in the courts of the
(B)(i) there is an absence of available
State corrective process; or
(ii) circumstances exist that render
such process ineffective to protect the
rights of the applicant.
28 U.S.C. § 2254(b)(1).
On the face of Petitioner’s submission to this Court,
Petitioner has not exhausted his state court remedies because
his claim is pending in the state post-conviction court.
Petitioner has not alleged that there is an absence of state
corrective process to address his federal claim or that
circumstances exist that render such process ineffective to
protect his rights.
Petitioner merely alleges jurisdiction is
proper here because his claim is federal in nature.
(Pet. ¶ 2.)
A federal court will not grant a state
prisoner's petition for a writ of habeas
corpus unless available state-court remedies
on the federal constitutional claim have
been exhausted. 28 U.S.C. § 2254(b)(1);
Stevens v. Del. Corr. Ctr., 295 F.3d 361,
369 (3d Cir.2002). The exhaustion
requirement is satisfied only if the
petitioner can show that he fairly presented
the federal claim at each level of the
established state-court system for review.
O'Sullivan v. Boerckel, 526 U.S. 838, 84445, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999);
Whitney, 280 F.3d at 250.2 “Fair
presentation” of a claim means that the
petitioner “must present a federal claim's
factual and legal substance to the state
courts in a manner that puts them on notice
that a federal claim is being asserted.”
McCandless v. Vaughn, 172 F.3d 255, 261 (3d
Cir.1999) (citations omitted).
Holloway v. Horn, 355 F.3d 707, 714 (3d Cir. 2004).
Because his State post-conviction proceeding is still
pending, Petitioner has not exhausted his state court remedies
on his claims.
For these reasons, Petitioner may wish to
exhaust his state court remedies before bringing his federal
IT IS, therefore, on this 3rd day of March 2015,
ORDERED that this matter is dismissed; and it is further
ORDERED that, Petitioner may open a new case by paying the
five dollar filing fee or submitting a properly executed form,
“Prisoner Applying To Proceed In Forma Pauperis In A Habeas
Corpus Case,” accompanied by a properly completed form “Petition
for Relief From a Conviction or Sentence By a Person in State
Custody Under 28 U.S.C. 2254;” and it is finally
ORDERED that the Clerk shall serve this Memorandum and
Order upon Plaintiff by regular U.S. Mail, together with blank
forms “Prisoner Applying To Proceed In Forma Pauperis In A
Habeas Corpus Case” and “Petition for Relief From a Conviction
or Sentence By a Person in State Custody Under 28 U.S.C. 2254.”
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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