MCLAUREN v. LAGANA et al

Filing 2

MEMORANDUM OPINION NOTICE and ORDER that Petitioners application to proceed in this matter in forma pauperis, Docket Entry No. 1-1, is denied with prejudice; that Petitioner may have this case reopened in the event he submits his filing fee of $5 within thirty days from the date of entry of this Memorandum Opinion, Notice and Order; etc. Signed by Judge Claire C. Cecchi on 1/18/13. (jd, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

LEROY McLAUREN,
Petitioner,

Civil Action No. 13-0145 (CCC)
MEMORANDUM OPINION

v.

NOTICE AND ORDER
PAUL K. LAGANA et aL,
Respondents.

It appearing that:
1.

On January 7, 2012, the Clerk received a submission made by Leroy McLauren
(“Petitioner”).

Docket Entry No. 1. The submission, executed on January 3, 2013,’

see Docket Entry No. 1-3, presented a petition (“Petition”) seeking a writ of habeas
corpus, pursuant to 28 U.S.C.

§ 2254(a), and challenging a judgment of conviction

entered by the Superior Court of New Jersey in 1988.

Docket Entry No. 1. The bulk

of Petitioner’s application is dedicated to a discussion as to why his Petition shall be
deemed timely, see jj, even though the Supreme Court of New Jersey denied him
certification as to his direct appeal on May 30, 1990, see State v. McLauren, 122 NJ. 160
(1990), and his application for post-conviction relief was filed only in December 2009,

1

Since the submission was executed on January 3, 2013, it is self-evident that Petitioner
could not have handed his submission to the prison officials for mailing to the Court prior to that
date, and the Court takes a judicial notice to that effect, See Jackson v. Broad. Music. mc., 2006
U.S. Dist. LEXIS 3960, at *18 (S.D,N.Y. Jan. 31, 2006) (“the court may take judicial notice of..
admissions in pleadings. filed by a party”). At this juncture, the Court need not make a
determination as to whether he handed his submission to the prison officials on a later date.
.

.

that is, almost two decades later, yielding dismissal as untimely under the state law.
State v. McLauren, 2012 WL 1537305 (N.J. Super. CL App. Div. May 3, 2012), certif.
denied, 212 N.J. 431 (Oct. 25, 2012), which sets forth requirements that are far more

2
lenient than those posed by the governing federal regime.
2.

The Petition arrived accompanied by Petitioner’s application to proceed in this matter jj,
forma pauperis.

Docket Entry No. 1-1. The application indicated that, within six

months preceding Petitioner’s submission of the Petition at bar, his prison account
balance varied between $210 and $1,248, dropping to $185 only once.
3.

S. ick

The filing fee for a petition for writ of habeas corpus is $5. 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 8 1.2(b), whenever a prisoner submits a petition for writ of
habeas and seeks to proceed j forma pauperis, that petitioner must submit an affidavit
setting forth information which establishes that the petitioner is unable to pay the fees and
costs of the proceedings, and a certification signed by an authorized officer of the
institution certifying the greatest amount on deposit in the prisoner’s 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 j forma pauperis.

Local Civil Rule 81.2(c).

2

Miller v. New Jersey State Dept. of Corn, 145 F.3d 616. 618-19 (3d Cir. 1998)
(equitable tolling applies “only when the principles of equity would make the rigid application of
a limitation period unfair. Generally, this will occur [only I when the petitioner has in some
Mere excusable neglect is
extraordinary way been prevented from asserting his or her rights.
not sufficient”); compare N.J. Ct. R, 3:22-12(a) (state court provision allowing equitable tolling
for the purposes of post-conviction review applications upon the litigant’s showing of excusable
neglect).
...

7

4.

Here, Petitioner’s application does not contain a certification of the greatest amount on
deposit in his institutional account. See Docket Entry No. 1-1. However, a cursory
review of the same establishes that the greatest amount was equal to $1,248, while the
average, median and prevalent amounts during the last six months well exceeded $500.
See id. Indeed, only once Petitioner’s account dropped below $200, going to $185.
jçj. In light of the foregoing, and being guided by both the spirit and letter of Local Civil
Rule 81.2(c), this Court cannot find that payment of $5 filing fee would be unduly
burdensome for Petitioner.

Adkins v. E. I. DuPont De Nemours & Co.. Inc., 335

U.S. 331 (1948) (a federal court should not use the affidavit of indigency requirement of

§ 1915 as a tool to force a party to prove that he is absolutely destitute before allowing
that person to proceed jjj forma pauperis, but the district court enjoys discretion to
determine whether the payment of the fees would be unduly burdensome). Therefore,
Petitioner’s application to proceed in this matter jj fonna pauperis will be denied; such
denial will be with prejudice. Petitioner, however, will be allowed an opportunity to
submit his filing fee of $5 within thirty days.
5.

In the event Petitioner elects to submit his filing fee, the Court will allow him to show
3
cause as to why his Petition should not be dismissed as facially untimely. Although

Since Petitioner was denied certification as to his judgment of conviction in 1990, his
federal period of limitations expired on April 23, 1997. (Many federal circuit courts have held
that the one-year grace period for petitioners whose convictions became final prior to the
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ended on April 24,
1997, not April 23, 1997. See Patterson v. Stewart. 251 F.3d 1243, 1246 (9th Cir. 2001)
(collecting cases). Although the Third Circuit has noted that, “[a]rguably we should have used
(continued...)
3

Petitioner appears keenly aware of this crucial deficiency of his application and, indeed,
the bulk of his Petition is dedicated to discussion of this topic, see Docket Entry No. 1,
this Court is mindful of the Court of Appeals’ relevant guidance and, thus, finds it
4
prudent to allow Petitioner an additional and final opportunity to address this issue.
IT IS, therefore, on this

I

day of

J

,

2013,

ORDERED that Petitioner’s application to proceed in this matter j forma pauperis,
Docket Entry No. 1-1, is denied with prejudice; and it is further
ORDERED that the Clerk shall administratively terminate this matter by making a new

and separate entry on the docket reading, “CIVIL CASE TERMINATED”; and it is further

3(,

.continued)
April 24, 1997, rather than April 23, 1997, as the cut-off date,” Douglas v. Horn, 359 F.3d 257,
261 n,5 (3d Cir. 2004) (citing Fed. R. Civ, P. 6(d)), it appears that April 23, 1997 is the relevant
cut-off date in this Circuit. The one-day difference, however, is likely to be immaterial in this
case because Petitioner filed his application at bar almost sixteen years later.)
.

United States v. Bendolph, 409 F.3d 155, 159-69 (3d Cir. 2005) (district court may
iL sponte dismiss a habeas application as untimely even if respondents are directed to answer
and yet fail to raise untimeliness as an affirmative defense); United States v. Bryant, 186 F.
United States v. Pierce, 2011 U.S. Dist. LEXIS
App’x 298, 299 (3d Cir. 2006) (same); see
129527 (D. Del. Nov. 8, 2011) (“[Habeas] Rule 4 requires a district court judge to sua sponte
dismiss a habeas petition without ordering a responsive pleading, if it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that the moving party is not
entitled to relief.’ Rule 4, 28 U.S.C. foll. § 2255”). “Federal courts are authorized to dismiss
summarily any habeas petition that appears legally insufficient on its face.” McFarland v. Scott,
Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985) (same). cr.t
512 U.S. 849, 856 (1994); see
denied, 490 U.S. 1025 (1989). However, since a district court should ordinarily “give notice that
a limitations problem may exist, as well as’ provide an opportunity for a habeas. petitioner to
respond” to the court’s concerns. e Bendolph, 409 F.3d at 165. n.l5, because “there maybe
reasons not apparent on the record,” United States v. Clive, 2008 U.S. Dist. LEXIS 63357, at *8
(W.D. Pa. Aug. 19, 2008) (citing Fahy v. Horn, 240 F.3d 239, 244 (3d Cir. 2001)), the Court will
allow Petitioner one more opportunity to elaborate on the issue of timeliness.
.

4

.

ORDERED that Petitioner may have this case reopened in the event he submits his filing

fee of $5 within thirty days from the date of entry of this Memorandum Opinion, Notice and
Order; and it is further
ORDERED that administrative termination is not a dismissal on merits, and this Court
will deem Petitioner’s application at bar timely

--

but only in the event it was timely on the day

when Petitioner handed it to his prison officials for mailing to this Court; and it is further

ORDERED that, in the event Petitioner submits his filing fee of $5 within thirty days
from the date of entry of this Memorandum Opinion, Notice and Order, he may, if he so desires,
accompany his filing fee by a written statement not exceeding five pages, single-sided and
double-spaced, further elaborating on the issue of timeliness of his Petition; and it is further
ORDERED that, in the event Petitioner does not submit such written statement, his
opportunity to show cause as to why his Petition should not be dismissed as untimely would be
deemed conclusively waived, and the Court will address solely the relevant argument stated in
his Petition; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion, Notice and Order upon
Petitioner by regular U.S. mail.

Claire C. Cecchi
United States District Judge