MARTINO v. UNITED STATES OF AMERICA
MEMORANDUM AND ORDER directing the Clerk to forward Petitioner a blank 2255 form; ORDERED this matter shall be ADMINISTRATIVELY TERMINATED; ORDERED that, if Petitioner wishes to re-open this action, he shall so notify the Court within 30 days. Signed by Judge Noel L. Hillman on 1/8/2021. (dmr)(n.m.)
Case 1:21-cv-00037-NLH Document 2 Filed 01/08/21 Page 1 of 3 PageID: 29
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
UNITED STATES OF AMERICA,
NICHOLAS KYLE MARTINO,
Civ. No. 21-0037 (NLH)
MEMORANDUM AND ORDER
IT APPEARING THAT:
Petitioner has filed a motion to correct, vacate, or
set aside his federal sentence pursuant to 28 U.S.C. § 2255.
ECF No. 1.
Local Civil Rule 81.2 provides:
Unless prepared by counsel, . . . motions under 28 U.S.C. §
2255 shall be in writing (legibly handwritten in ink or
typewritten), signed by the petitioner or movant, on forms
supplied by the Clerk.
Loc. Civ. R. 81.2(a).
It appears that Petitioner did not submit
his Petition on the District’s required form.
Specifically, the Petition fails to include the
certification on page 17 of the District’s form, which requires
Petitioner to acknowledge that he must include all the grounds
for relief from the conviction or sentence in this Petition and
if he fails to set forth all the grounds, he may be barred from
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presenting additional grounds at a later date.
and certification are required by United States v Miller, 197
F.3d 644 (3d Cir. 1999).
IT IS THEREFORE on this
day of January, 2021,
ORDERED that the Clerk of the Court shall forward
Petitioner a blank § 2255 form—AO 243 (modified): DNJ-Habeas004(Rev.01-2014), for use by Petitioner; and it is further
ORDERED this matter shall be ADMINISTRATIVELY TERMINATED 1;
and it is further
ORDERED that, if Petitioner wishes to re-open this action,
he shall so notify the Court within 30 days of the date of entry
of this Order, in writing addressed to Clerk of the Court, at
Mitchell H. Cohen Building and U.S. Courthouse, Fourth and
Cooper Streets, Camden, New Jersey, 08101; Petitioner’s writing
shall include an amended petition which includes a completed
Petitioner is informed that administrative termination is not a
“dismissal” for purposes of the statute of limitations, and that
if the case is reopened, it is not subject to the statute of
limitations time bar if it was originally filed timely, see
Papotto v. Hartford Life & Acc. Ins. Co., 731 F.3d 265, 275
(2013) (distinguishing administrative terminations from
dismissals); Jenkins v. Superintendent of Laurel Highlands, 705
F.3d 80, 84 n.2 (2013) (describing prisoner mailbox rule
generally); Dasilva v. Sheriff's Dep’t., 413 F. App’x 498, 502
(3rd Cir. 2011) (per curiam) (“[The] statute of limitations is
met when a [petition] is submitted to the clerk before the
statute runs ….”).
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page 17 certifying that the amended petition must include all
claims; and it is finally
ORDERED that the Clerk of the Court shall serve a copy of
this Order upon Petitioner by regular U.S. mail.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
At Camden, New Jersey
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