BLACKSHEAR v. UNITED STATES OF AMERICA

Filing 2

OPINION. Signed by Judge Noel L. Hillman on 4/7/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
:
:
Petitioner,
:
:
v.
:
:
UNITED STATES OF AMERICA,
:
:
Respondent.
:
______________________________:
JAMAR BLACKSHEAR,

Civ. No. 17-712 (NLH)
OPINION

APPEARANCES:
Jamar Blackshear
67023-066
Fort Dix
Federal Correctional Institution
Inmate Mail/Parcels
East: P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro se

HILLMAN, District Judge
Petitioner Jamar Blackshear, a prisoner confined at the
Federal Correctional Institution (“FCI”) in Fort Dix, New
Jersey, files this writ of habeas corpus under 28 U.S.C. § 2241,
arguing that his counsel was ineffective at various stages of
his criminal proceedings.
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 and seeks to
proceed in forma pauperis, that petitioner 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 prisoners institutional
account during the six-month period prior to the date of the
certification.

If the institutional account of the petitioner

exceeds $200, the petitioner shall not be considered eligible to
proceed in forma pauperis. L. CIV. R. 81.2(c).
Here, Petitioner did not prepay the $5.00 filing fee for a
habeas petition as required by Local Civil Rule 54.3(a), nor did
Petitioner submit a complete application for leave to proceed in
forma pauperis.

Specifically, he failed to submit the required

account certification.

L. CIV. Rule 81.2(b).

Proper Respondent
Petitioner has named as Respondent the United States of
America. Petitioner is informed that, among other things, 28
U.S.C. § 2242 requires the petition for a writ of habeas corpus
to allege “the name of the person who has custody over [the
petitioner].”

See also 28 U.S.C. § 2243 (“The writ, or order to
2

show cause shall be directed to the person having custody of the
person detained.”).

“[T]hese provisions contemplate a

proceeding against some person who has the immediate custody of
the party detained, with the power to produce the body of such
party before the court or judge, that he may be liberated if no
sufficient reason is shown to the contrary.”

Wales v. Whitney,

114 U.S. 564, 574 (1885).
In accord with the statutory language and
Wales' immediate custodian rule, longstanding
practice confirms that in habeas challenges to
present
physical
confinement—“core
challenges”—the default rule is that the
proper respondent is the
warden of the
facility where the prisoner is being held, not
the United States of America or some other
remote supervisory official.

Rumsfeld v. Padilla, 542 U.S. 426, 434–436 (2004) (citations
omitted).

Thus, the warden of the facility where Petitioner is

held is an indispensable party respondent, for want of whose
presence the Petition may not proceed.

See Yi, 24 F.3d at 507.

CONCLUSION
For the reasons set forth above, the Clerk of the Court will
be ordered to administratively terminate this action without
prejudice. 1

Petitioner will be granted leave to apply to re-open

1

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 submitted timely. See Houston v. Lack, 487 U.S. 266
3

within 45 days, by either prepaying the filing fee or submitting
a complete application for leave to proceed in forma pauperis 2
and also submitting an amended petition with the proper
respondent.

An appropriate Order will be entered.

Dated: April 7, 2017
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

(1988) (prisoner mailbox rule); 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).
2

While the
application
uncertified
be eligible
balance has

Court will not address the merits of his incomplete
at this juncture, the Court notes that if his
account statement is correct, Petitioner would not
for in forma pauperis status because his account
substantially exceeded $200 in the past six months.
4