COOK v. CATHEL et al

Filing 16

MEMORANDUM/ORDER REOPENING CASE; that the Clerk shall update Mr. Cooks address of record as follows: Thomahl Cook, SB# 405681, East Jersey State Prison, Lockbag R, Rahway, New Jersey 07065; that the Clerk shall replace Ron Cathel with Patrick Nogan as a respondent; that petitioners motion to amend his habeas petition is granted and the Clerk shall file petitioners amended petition which can be found at Dkt. Nos. 11-2, 11-3, 11-4 & 11-5; that respondents shall file a full and complete answer to the habeas petition within forty-five (45) days of the entry of this Order; etc. Signed by Judge Kevin McNulty on 4/29/15. (DD, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THOMAHL COOK,
Petitioner,

Civ. No. 05-3916 (KM)
MEMORANDUM AND ORDER

V.

RON CATHEL, et al.
Respondents.
Petitioner, Thomahi Cook, is a state prisoner proceeding with a habeas petition filed
pursuant to 28 U.S.C.

§ 2254. Petitioner was initially proceeding through counsel, Ms. Marcia H.

Blum, Esq, in this case. On December 8, 2005, Judge Ilochberg (for whom this case was
originally assigned) stayed this matter pursuant to Rhines v. Weber, 544 U.S. 269 (2005).
Petitioner was instructed to file a motion to reopen with this Court within thirty days after the
completion of his state post-conviction relief proceedings. (See Dkt. No. 9.) On October 22,
2013, the Court received apro se letter from Mr. Cook indicating his request to reopen this case.
(See Dkt. No. 10.) No action was taken by the Court at that time.
On February 18, 2015, the Court received petitioner’spro se motion to reopen and for
leave to file an amended

§

2254 habeas petition. On March 18, 2015, this matter was reassigned

to me in light of Judge Flochberg’s retirement. As Ms. Blum was still petitioner’s counsel of
record, this Court sought clarification from Ms. Blum regarding her continued representation of
Mr. Cook in light of his pro se filings. l’he Order gave Ms. Blurn three options: (a) file a motion
to reopen on Mr. Cook’s behalf as was previously permitted pursuant to the December 8, 2005
stay Order; (b) state why such a motion would not be appropriate; or (c) file a motion to
withdraw as Mr. Cook’s counsel. (See Dkt. No. 13.)

On April 20, 2015, Ms. Blum filed a motion to withdraw as Mr. Cook’s attorney. (See
Dkt. No. 14.) On April 24, 2015, this Court granted Ms. l3lum’s motion to withdraw. (See Dkt.
No. 15.) In light of this withdrawal, Mr. Cook’s pro se motion to reopen and motion for leave to
amend his petition will be revisited.
Mr. Cook’s motion to reopen will be granted. Mr. Cook admits that the New Jersey
Supreme Court denied certification on his post-conviction relief petition in June, 2013. However,
the motion to reopen was not filed until more than two years later. Nevertheless, Mr. Cook states
that he submitted a series of letters to the Court in 2013 seeking to reopen this case. Indeed, the
docket reflects that in October, 2013, Mr. Cook submitted a letter to the Court seeking to reopen
this case. (See Dkt. No. 10.) While this letter was submitted after the thirty-day window
pronounced by the Court in the stay order, I will grant Mr. Cook’s motion to reopen nonetheless
in the interests of justice.
The Court will also grant Mr. Cook’s motion for leave to file an amended petition. Upon
screening the amended petition, the Court has determined that dismissal of the amended petition
without an answer and the record is not warranted, see Rule 4 of Rules Governing 28 U.S.C.

§

2254 Cases.
One final procedural matter deserves this Court’s attention. The proper respondent in this
case is the custodian of the petitioner. See Rumsfeldv. Padilla, 542 U.S. 426, 435 (2004), Mr.
Cook is now incarcerated at the East Jersey State Prison in Rahway, New Jersey. The
administrator of that facility is Patrick Nogan. Therefore, the Clerk will be ordered to replace
Ron Cathel with Patrick Nogan as the respondent in this case. Additionally, the Clerk will be
ordered to update Mr. Cook’s address to reflect his current incarceration at the East Jersey State
Prison.

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Accordingly, iT IS this 29th day of April, 2015,
ORDERED that petitioner’s motion to reopen this case is granted; and it is further
ORDERED that the Clerk shall update Mr. Cook’s address of record as follows:
Thomahl Cook, SB# 405681, East Jersey State Prison, Lockbag R, Rahway, New Jersey 07065;
and it is further
ORDERED that the Clerk shall replace Ron Cathel with Patrick Nogan as a respondent in
this case; and it is further
ORDERED that petitioner’s motion to amend his habeas petition is granted and the Clerk
shall file petitioner’s amended petition which can be found at Dkt. Nos. 11-2, 11-3, 11-4 & 11-5;
and it is further
ORDERED that the Clerk shall serve a copy of the amended habeas petition and this
Order on the respondents by regular U.S. mail, with all costs of service advanced by the United
States, and it is further
ORDERED that respondents shall file a full and complete answer to the habeas petition
within forty-five (45) days of the entry of this Order; and it is further
ORDERED that respondents’ answer shall address the allegations and grounds of the
habeas petition, and shall adhere to the requirements of Rule 5 of the Rules Governing 28 U.S.C.

§ 2254 Cases; and it is further
ORDERED that the answer shall indicate what transcripts (of pretrial, trial, sentencing, or
post-conviction proceedings) are available, when they can be furnished, and what proceedings
have been recorded but not transcribed; and it is further
ORDERED that respondents shall attach to the answer parts of the transcript that the
respondents consider relevant and, if a transcript cannot be obtained, respondents may submit a

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narrative summary of the evidence, see Rule 5(c) of the Rules Governing 28 U.S.C.

§ 2254

Cases; and it is further
ORDERED that respondents shall file with the answer a copy of: (1) any brief that
petitioner submitted in an appellate court contesting the conviction or sentence, or contesting an
adverse judgment or order in a post-conviction proceeding; (2) any brief that the prosecution
submitted in an appellate court relating to the conviction or sentence; and (3) the opinions and
dispositive orders relating to the conviction or the sentence, see Rule 5(d) of the Rules
Governing 28 U.S.C.

§ 2254 Cases; and it is further

ORDERED that the answer shall contain an index of exhibits; and it is further
ORDERED that respondents shall file the answer, the index of exhibits, and the exhibits
electronically; and it is further
ORDERED that respondents shall serve the answer, the index of exhibits, and the
exhibits upon petitioner, see Rule 5 of the Rules Governing 28 U.S.C.

§ 2254 Cases; FED. R.

Civ. P. 10(c); Sixta v. Thaler, 615 F.3d 569, 569 (5th Cir. 2010); Thompson v. Greene, 427 F.3d
263, 269 (4th Cir. 2005); Findale v. Nunn, 248 F. Supp. 2d 361, 367 (D.N.J. 2003); and it is
further
ORDERED that petitioner may file and serve a reply to the answer within forty-five (45)
days of petitioner’s receipt of same, see Rule 5(e) of the Rules Governing 28 U.S.C.

§ 2254

Cases; and it is further
ORDERED that within seven (7) days of petitioner’s release, be it on parole or otherwise,
respondents shall electronically file a written notice of same with the Clerk; and it is finally

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ORDERED that the Clerk shall serve this Order on petitioner by regular U.S. mail.

United States District Judge

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