WRIGHT v. POWELL

Filing 2

MEMORANDUM and ORDER Clerk shall administratively terminate this matter. ORDERED Clerk shall send Plaintiff a copy of this Order, a blank 2254 application and a blank IFP. ORDERED Petitioner has 30 days from the entry of this Order to reopen this matter. Signed by Judge Renee Marie Bumb on 3/4/2015. (nz, )n.m.

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

As-Ashakoor Wright,
Petitioner,
v.
John Powell, Warden,
Respondent.

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Civil Action No. 15-1471(RMB)

MEMORANDUM AND ORDER

BUMB, District Judge
This matter comes before the Court upon Petitioner’s
submission of a petition under 28 U.S.C. § 2241, which was
unaccompanied by the $5.00 filing fee or an in forma pauperis
(IFP) application.

See Petition (Doc. No. 1).

Petitioner is an

inmate confined at Bayside State Prison, Leesburg, New Jersey.
(Pet.)

Petitioner seeks to have his conviction and sentence

vacated or to have his status changed so he can be transferred
to a “camp.”

(Id.)

Petitioner asserts that he is incarcerated based on
convictions in state court in 1997 and 1998, but he has not
given any additional information.

(Pet. at 2.)

Petitioner

alleges jurisdiction under 28 U.S.C. § 2241 because he is

challenging the execution of his sentence(s).

(Pet. at 2.)

Petitioner stated, “because of the adverse collateral
consequence the past state charge entails, [Petitioner] is being
denied access to the Camp, along with lower reduction of
security.”

(Id.)

A habeas corpus petition must be accompanied by a five
dollar filing fee1 or a properly completed “Application to
Proceed In Forma Pauperis in a Habeas Case.”2

Petitioner has not

paid the filing fee or submitted an application to proceed in
forma pauperis.

Thus, the Court will administratively terminate

this matter, but Petitioner will be allowed to reopen the case
by paying the five dollar filing fee or submitting a properly
completed “Application to Proceed In Forma Pauperis in a Habeas
Case.”
Although Petitioner may reopen the 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
district court.

See Rule 4 of the Rules Governing Section 2254

Cases in the United States District Courts (district court must
dismiss the petition after preliminary review if it plainly
appears that the petitioner is not entitled to relief); Rule
1(b) of the Rules Governing Section 2254 Cases in the United

1
2

See 28 U.S.C. § 1914(a).
See 28 U.S.C. § 1915.
2

States District Courts (“[t]he District Court may apply any or
all of these rules to a habeas corpus petition not covered by
Rule 1(a)).
Petitioner’s challenge to his prisoner status, which he
alleges does not allow him to be housed in a lower security
prison or a “camp,” appears to be a challenge to the execution
of his sentence.

See Ganim v. Federal Bureau of Prisons, 235 F.

App’x 882, 884 (3d Cir. 2007) (noting § 2241 may be proper to
challenge execution of sentence where the “level” of custody is
at issue).

28 U.S.C. § 2241 allows a federal prisoner to

challenge the execution of his or her sentence.
251 F.3d 480, 485 (3d Cir. 2001).

Cody v. Vaughn,

The proper vehicle for a

state prisoner to challenge the execution of his sentence in
federal court is by filing a habeas petition under 28 U.S.C. §
2254.

See Id. (Section 2254 “confers broad jurisdiction to hear

the petition of any state prisoner ‘in custody in violation of
federal law.’”)
Petitioner also seeks to set aside or vacate “the remaining
part of his conviction and sentence.”3

3

(Pet. at 6).

A

Petitioner also seeks declaratory judgment under 28 U.S.C. §
2201 that “[Petitioner] was a victim of the fundamental
muscarriage [sic] of justice.” (Pet. at 4.) The Declaratory
Judgment Act does not create federal jurisdiction. See Ragoni
v. U.S., 424 F.2d 261, 264 (3d Cir. 1970)(“the mere fact that a
declaratory judgment is being sought is not, of itself, ground
for federal jurisdiction.” Vacation of Petitioner’s state
convictions or sentences is properly sought under 28 U.S.C. §
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petitioner may challenge the validity of his state conviction or
sentence under 28 U.S.C. § 2254, based on a violation of the
Constitution or federal law, but availability of such review is
not unlimited.
First, there is a one-year statute of limitations to bring
such a claim.

28 U.S.C. § 2244(d)(1).

Given that Petitioner’s

convictions occurred in 1997 and 1998, it is likely that the
statute of limitations would bar his § 2254 petition seeking to
vacate his state conviction(s), absent extraordinary
circumstances that would justify equitable tolling of the
statute.

Second, Petitioner would be required to exhaust his

state court remedies before challenging his state conviction(s)
or sentence(s) under § 2254, again, absent extraordinary
circumstances.

28 U.S.C. § 2254(b)(1).

In sum, while Petitioner may reopen this case by paying the
filing fee or submitting an application to proceed without
paying the fee, in order to avoid summary dismissal of his
petition, he may wish to carefully consider the proper vehicle
for his claims, and whether he is presently precluded from
bringing such claims by procedural rules such as the statute of
limitations or exhaustion of state remedies.

Additionally,

Petitioner should be aware that to obtain relief, he must allege
2254. An inmate cannot escape the procedural hurdles of seeking
habeas relief by bringing his claim under the Declaratory
Judgment Act.
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facts that entitle him to the relief he requests.

See Rule 2(c)

of the Rules Governing Section 2254 Cases in the United States
District Courts (describing the requirements of the form of a §
2254 petition).
IT IS, therefore, on this 4th day of March 2015,
ORDERED that the Clerk shall administratively terminate
this matter by making a new and separate entry reading, “CIVIL
CASE TERMINATED.”

Such termination shall be subject to

reopening in the event Plaintiff timely submits a properly
executed IFP application; and no statement in this Memorandum
and Order shall be construed as withdrawal of this Court’s
jurisdiction over this matter; and it is further
ORDERED that Plaintiff may renew his application in this
matter by submitting, within thirty days from the date of entry
of this Memorandum and Order, a properly executed “Application
to Proceed In Forma Pauperis in a Habeas Case;” and he may
accompany that submission with a properly completed “Petition
for Relief From a Conviction or Sentence By a Person in State
Custody;” and it is further
ORDERED that the Clerk shall serve this Memorandum and
Order upon Plaintiff by regular U.S. Mail, together with the
following blank forms:

“Application to Proceed In Forma

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Pauperis in a Habeas Case” and “Petition for Relief From a
Conviction or Sentence By a Person in State Custody.”

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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