NEVIUS v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al
Filing
18
OPINION. Signed by Judge Noel L. Hillman on 1/10/20. (dd)n.m.
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
THOMAS NEVIUS,
:
:
Petitioner,
:
Civ. No. 17-4587 (NLH)
:
v.
:
OPINION
:
THE ATTORNEY GENERAL FOR THE :
STATE OF NEW JERSEY, and
:
STEVEN JOHNSON,
:
:
Respondents.
:
______________________________:
Petitioner Thomas Nevius (“Petitioner”), a prisoner
presently incarcerated at New Jersey State Prison in Trenton,
New Jersey, brought a petition pursuant to 28 U.S.C. § 2254 for
Writ of Habeas Corpus before this Court.
See ECF No. 1.
At the
time of filing, Petitioner paid the required five-dollar filing
fee.
On December 11, 2019, the Court issued an Opinion and
Order denying the petition.
See ECF Nos. 13, 14.
On January 7, 2019, Petitioner filed a notice of appeal.
See ECF No. 16.
He concurrently filed a motion for leave to
proceed in forma pauperis (“IFP”).
See ECF No. 17.
Petitioner
separately filed a letter which included his six-month prison
account statement.
See ECF No. 15.
Pursuant to Federal Rule of
Appellate Procedure 24(a)(1), a court may grant a petitioner IFP
status on appeal where the petitioner shows, in the detail
required by Form 4 of the Appendix of Forms, that he is unable
to pay or to give security for the fees and costs on appeal.
A
petitioner must also state the issues that he intends to present
on appeal.
See Fed. R. App. P. 24(a)(1).
Under Local Appellate Rule 24.1(c), a prisoner seeking IFP
status on appeal of the denial of a habeas petition, 1 must file
“an affidavit of poverty in the form prescribed by the Federal
Rules of Appellate Procedure accompanied by a certified
statement of the prison account statement(s) (or institutional
equivalent) for the 6 month period preceding the filing of the
notice of appeal.”
L. App. R. 24.1(c).
Here, Petitioner’s application for IFP status does include
an affidavit of poverty which substantially complies with the
requirements of the Federal Rules of Appellate Procedure.
See
ECF No. 17; see also Fed. R. App. P. 24(a)(1); Fed. R. App. P.,
App’x, Form 4.
Significantly, however, Petitioner’s six-month
prison account statement was not certified by a prison official
and he did not include a statement of the issues he intends to
raise on appeal.
See ECF Nos. 15, 17.
Consequently, Petitioner
has failed to comply with the applicable rules and his motion
1
Paragraph (c) of Local Appellate Rule 24.1 applies to “cases
filed in which 28 U.S.C. § 1915(b) does not apply.” L. App. R.
24.1(c). The Third Circuit has held that § 1915(b) does not
apply to habeas petitions or to appeals of denials of habeas
petitions. See Santana v. United States, 98 F.3d 752, 756 (3d
Cir. 1996).
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must be denied without prejudice until such time as he has cured
this deficiency.
CONCLUSION
For the reasons set forth above, Petitioner’s motion for
leave to proceed in forma pauperis on appeal is denied without
prejudice.
Petitioner may file another application for leave to
proceed in forma pauperis on appeal within 30 days of this
Opinion and accompanying Order.
If Petitioner wishes to refile
his application, he must do so by filing a new application
accompanied by a certified, six-month prison account statement
and a statement of the issues he intends to present on appeal.
An appropriate Order follows.
Dated: January 10, 2020
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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