BANKS v. PIERCE et al

Filing 2

MEMORANDUM AND ORDER that if Respondents do not file a Motion to Dismiss the Petition, they shall file a full and complete answer to all claims asserted in the Petition within forty-five (45) days of the entry of this Order. Signed by Judge Robert B. Kugler on 5/4/2017. (tf, n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
BRYAN BANKS,
:
:
Petitioner,
:
Civ. No. 17-2961 (RBK)
:
v.
:
:
DAVID PIERCE, et al.,
:
MEMORANDUM AND ORDER
:
Respondents.
:
_________________________________________ :
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. A Petition for Writ of Habeas Corpus having been filed in the
above action, pursuant to 28 U.S.C. § 2254, and the Court having screened the Petition for
summary dismissal pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United
States District Courts (“Habeas Rules”), this Court concludes that it does not “plainly appear[ ]
from the petition and any attached exhibits that the petitioner is not entitled to relief ….”
Accordingly, the Respondents will be ordered to file a response to the habeas petition.
Therefore, IT IS this 4th day of May, 2017,
ORDERED that the Clerk of the Court shall serve, pursuant to Rule 4 of the Habeas
Rules, a Notice of Electronic Filing of this Order on the State of New Jersey, Department of Law
& Public Safety, Division of Criminal Justice, Appellate Bureau (“the Bureau”), in accordance
with the Memorandum of Understanding between this Court and the Bureau; and it is further
ORDERED also in accordance with the Memorandum of Understanding, that if the
Bureau intends to refer the action to a County Prosecutor’s Office, the Bureau will use its best
efforts to upload to CM/ECF a “referral letter” indicating the name of that office within fourteen
(14) calendar days from the date of the Order to Answer; and it is further

ORDERED that where the Petition appears to be untimely under the Antiterrorism and
Effective Death Penalty Act of 1996, within forty-five (45) days of the date this Order is filed,
Respondents may file a Motion to Dismiss the Petition on timeliness grounds only, provided that
the motion: (1) attaches exhibits that evince all relevant state court filing dates; (2) contains
legal argument discussing pertinent timeliness law; and (3) demonstrates that an Answer to the
merits of the Petition is unnecessary; and it is further
ORDERED that if a Motion to Dismiss is filed, Petitioner shall have thirty (30) days to
file an opposition brief, in which Petitioner may argue any bases for statutory and/or equitable
tolling, and to which Petitioner may attach any relevant exhibits; and it is further
ORDERED that if Petitioner files an opposition, Respondents shall have ten (10) days to
file a reply brief; and it is further
ORDERED that if the Motion to Dismiss is subsequently denied, the Court will then
direct Respondents to file a full and complete answer to all claims; and it is further
ORDERED that if Respondents do not file a Motion to Dismiss the Petition, they shall
file a full and complete answer to all claims asserted in the Petition within forty-five (45) days of
the entry of this Order; and it is further
ORDERED that Respondents’ answer shall respond to each factual and legal allegation
of the Petition, in accordance with Habeas Rule 5(b); and it is further
ORDERED that Respondents’ answer shall address the merits of each claim raised in the
Petition by citing to relevant federal law; and it is further
ORDERED that, in addition to addressing the merits of each claim, Respondents shall
raise by way of its answer any appropriate defenses which they wish to have the Court consider,
including, but not limited to, exhaustion and procedural default, and also including, with respect

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to the asserted defenses, relevant legal arguments with citations to appropriate federal legal
authority; all non-jurisdictional affirmative defenses subject to waiver not raised in Respondents’
answer or at the earliest practicable moment thereafter may be deemed waived; and it is further
ORDERED that Respondents’ answer shall adhere to the requirements of Habeas Rule
5(c) and (d) in providing the relevant state court record of proceedings, including any pro se
filings; and it is further
ORDERED that the answer shall contain an index of exhibits identifying each document
from the relevant state court proceedings that is filed with the answer; and it is further
ORDERED that Respondents shall electronically file the answer, the exhibits, and the list
of exhibits; and it is further
ORDERED that all exhibits to the Answer must be identified by a descriptive name
in the electronic filing entry, for example:
“Exhibit #1 Transcript of [type of proceeding] held on XX/XX/XXXX” or
“Exhibit #2 Opinion entered on XX/XX/XXXX by Judge YYYY”; and it is
further
ORDERED that Petitioner may file and serve a reply to the answer within forty-five (45)
days after Respondents file the answer, see Habeas Rule 5(e); it is further
ORDERED that, within seven (7) days after any change in Petitioner’s custody status, be
it release or otherwise, Respondents shall electronically file a written notice of the same with the
Clerk of the Court; and it is further

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ORDERED that the Clerk of the Court shall serve a copy of this Order on Petitioner by
regular U.S. mail.

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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