ARISTEO v. OWENS et al

Filing 2

MEMORANDUM AND ORDER administratively terminating the case for failure to pay the filing fee or submit an IFP application; ORDERED that if Petitioner wishes to reopen this case, he shall so notify the Court in writing within 30 days, etc. Signed by Judge Renee Marie Bumb on 7/111/2016. (dmr)(n.m.)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

BRUCE ARISTEO,
Petitioner,

v.
STATE OF NEW JERSEY JUSTICE
OFFICERS, et al.,
Respondents.

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Civil

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Action

No.

16-3458
(RMB
)

MEMORANDUM AND ORDER

On June 15, 2016, Petitioner, an inmate incarcerated in
Camden

County

Correctional

Facility,

filed

a

self-styled

“Emergent Petition for Writ of Habeas Corpus,” pursuant to 28
U.S.C. § 2254. (Pet., ECF No. 1.) Petitioner did not use the
proper

form

for

the

petition

nor

did

he

file

a

properly

completed IFP application, as required by Local Rule 82.1. The
Court

will

administratively

terminate

this

matter,

but

Petitioner will be allowed to reopen the case by paying the five
dollar filing fee or by completing the form “Application to
Proceed In Forma Pauperis in a Habeas Case,” and submitting the
proper form for a habeas petition under 28 U.S.C. § 2254.

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Petitioner should be aware that after he pays the filing
fee or he is granted IFP status, the Court is required, by Rule
4 of the Rules Governing Section 2254 Cases in the United States
District

Courts,

to

dismiss

the

petition

“[i]f

it

plainly

appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court. . .”
The petition indicates that Petitioner was convicted of stalking
in Camden County Court on February 5, 2016, and he filed an
appeal of his conviction and sentence, which remains pending.
(Pet., ECF No. 1, ¶¶ 12, 14, 18.)
Until

Petitioner

exhausts

his

available

state

court

remedies, his petition is subject to dismissal under 28 U.S.C. §
2254(b)(1)(A) and Rule 4. See, O’Sullivan v. Boerckel, 526 U.S.
838, 845 (1999) (“state prisoners must give the state courts one
full

opportunity

to

resolve

any

constitutional

issues

by

invoking one complete round of the State's established appellate
review process.”) Thus, rather than reopening this matter only
to have it dismissed if Petitioner has not exhausted his state
court remedies, Petitioner may wish to exhaust his available
state court remedies before filing a petition under 28 U.S.C. §
2254.
The Court also notes Plaintiff filed a “Notice of Motion
for a Temporary Restraining Order and Preliminary Injunction”

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(ECF No. 1-4) with his petition. Therein, Petitioner seeks the
following relief:
Plaintiff moves for a temporary restraining
order enjoining any and all State of New
Jersey
Judicial
Officers,
County
Prosecutors,
Attorney
General,
Parole/Probation
Officers,
and
Law
Enforcement
from
compelling
the
removal/destruction of Plaintiff’s Internet
content, including but not limited to, his
websites, blogs, vlogs, videos, postings,
updates, comments, likes, shares, tweets,
re-tweets,
and
reviews,
material
to
Plaintiff’s State and Federal litigations.
. . .
(ECF No. 1-4 at 1.)
28 U.S.C. § 2254(a) provides:
The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall
entertain an application for a writ of
habeas corpus in behalf of a person in
custody pursuant to the judgment of a State
court only on the ground that he is in
custody in violation of the Constitution or
laws or treaties of the United States.
The

relief

available

under

§

2254

is

release

from

illegal

custody. See Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). In
certain instances, a plaintiff may seek prospective injunctive
relief

in

a

constitutional
abstention

civil

action

rights,

doctrine.

but

See

to

relief

FOCUS

v.

prevent
is

violation

limited

Allegheny

by

of

the

County

his

Younger

Court

of

Common Pleas, 75 F.3d 834, 843 (describing three requirements

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for federal court to abstain from interference in state judicial
proceeding to which the federal plaintiff is a party.)1
Plaintiff also seeks a preliminary injunction “enjoining
all New Jersey Justice Officers to construe statutes within the
intent of the legislation and apply First Amendment scrutiny to
all New Jersey cases, civil or criminal, involving speech, and
from prohibiting, criminalizing, or ‘chilling’ the free exchange
of online protected expression.” (ECF No. 1-4 at 2.) Plaintiff
is not entitled to such relief in this habeas proceeding. See
Rose v. Lundy, 455 U.S. 509, 518 (1982) (“[b]ecause ‘it would be
unseemly in our dual system of government for a federal district
court to upset a state court conviction without an opportunity
to

the

state

courts

to

correct

a

constitutional

violation,’

federal courts apply the doctrine of comity, ‘which teaches that
one court should defer action on causes properly brought within
its jurisdiction until the courts of another sovereignty with
concurrent powers, already cognizant of the litigation, have had
an

opportunity

to

pass

upon

the

matter’”)

(quoting

Darr

v.

Burford, 339 U.S. 200, 204 (1950)).
IT IS therefore on this 11th day of July 2016,

1

The Court notes Petitioner also filed a civil rights complaint
under 42 U.S.C. § 1983, related, at least in part, to his
present incarceration. See Aristeo v. John Doe Corrections
Officers 1-10, Civil Action No. 16-590(RMB) (D.N.J. Feb. 3,
2016).
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ORDERED
this

action

properly

that
for

the

Clerk

failure

completed

IFP

to

shall
pay

administratively

the

application,

filing
and

fee

terminate

or

failure

submit

to

use

a

the

proper form for a habeas petition; and it is further
ORDERED that the Clerk of the Court shall send Petitioner a
blank form “Application to Proceed In Forma Pauperis in a Habeas
Corpus Case” (DNJ-Pro-Se-007-B-(Rev. 09/09); and a blank form
“Petition for Relief From a Conviction or Sentence By a Person
in

State

Custody”

(AO

241

(modified):DNJ-Habeas-008(Rev.01-

2014)); and it is further
ORDERED that, if Petitioner wishes to reopen this action,
he shall so notify the Court within 30 days of the date of entry
of this Order, in writing addressed to the Clerk of the Court,
Mitchell

H.

Cohen

Building

&

U.S.

Courthouse,

4th

&

Cooper

Streets, Camden, N.J. 08101; Petitioner’s writing shall include
either: (1) a complete in forma pauperis application, including
a

certification

of

Petitioner’s

institutional

account,

as

required by Local Civil Rule 81.2(b); or (2) the $5 filing fee;
and

a

properly

completed

form

“Petition

for

Relief

From

a

Conviction or Sentence By a Person in State Custody;” and it is
finally
ORDERED that the Clerk of the Court shall serve a copy of
this

Order

upon

Petitioner

by

regular

U.S.

administratively terminate this case accordingly.
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mail,

and

s/RENÉE MARIE BUMB__________
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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