MINOR v. HASTINGS et al

Filing 2

MEMORANDUM OPINION,NOTICE AND ORDER - ORDERED that Petitioner's implied application to proceed in this matter in forma pauperis is granted; ORDERED that Petitioner has 45 days from the entry of this Memorandum Opinion, Notice and Order to file w ith the Clerk a letter or other written response to his signed by Petitioner advising the Court how petitioner would like to proceed with regard to his options ensuing from the holding of Mason v. Meyers, 208 F.3d 414; ORDERED that petiitoner has 4 5 days from the entry of this Memorandum Opinion, Notice and Order to file with the Clerk a letter or other written response signed by Petitioner advising the Court whether Petitioner wishes to seek stay and abeyance under the holding of Rhines v. We ber, 544 U.S. 269; ORDERED that in the event the Court receives no letter or other written response signed by Petitioner within 45 days from the entry of this Memorandum Opinion, Notice and Order, the Court will rule on the Petition "as is" ,addressing only Petitioner's first three Grounds and deeming Petitioner's fourth Ground withdrawn and all other challenges forfeited; ORDERED that the Clerk shall serve this Memorandum Opinion, Notice and Order upon Respondents by certifi ed mail, return receipt requested and duplicate that service by means of electronic delivery uponb the Office of the Attorney General for the State of New Jersey. The electronic notice shall state, on the "subject" line, "COUNSEL APPE ARANCE AND LIMITED ANSWER REQUIURED", ORDERED that, within 45 days from the date of entry of this Memorandum Opinion, Notice and Order, Respondents shall file a limited answer to the Petition consisting of: (1) all counseled and pro se briefs th at Petitioner submitted in a trial-level or appellate court contesting his conviction or sentence, or contesting an adverse judgement or order in a post-conviction proceeding;2) any brief tha the prosecution submitted in a trial-level or appellate c ourt relating to the conviction or sentence; (3) all opinions and dispositive orders issued by the state courts in relation to Petitioner's conviction or sentence, be these opinions and orders rendered during direct appellate or post-conviction proceedings; and (4) full transcript of Petitioner's trial, as well as the transcripts of his pre-trial and post-conviction relief hearings, if any such hearings were held; ORDERED that the limited answer shall be accompanied by an index of the aforesaid exhibits. The index shall refer to each exhibit by the docket entry of each exhibit, as these docket entries are made in the instant matter, not in the state courts; ORDERED that Respondents shall file such limited answer and the index of exhibits electronically; and it is finally ORDERED that the Clerk shall serve this Memorandum Opinion, Notice and Order upon Petitioner by certified mail, return receipt requested. re 1 Petition for Writ of Habeas Corpus filed by DAVID MINOR. Signed by Judge Jose L. Linares on 3/18/13. (dr, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DAVID MINOR,
Petitioner,

Civil Action No. 13-0558 (JLL)

v.
BEVERLY HASTINGS et al.,

MEMORANDUM OPINION
NOTICE AND ORDER

Respondents.
It appearing that:
I.

Petitioner filed an application (“Petition”) seeking habeas relief pursuant to 28 U.S.C.

§ 2254. $ Docket Entry No. I. The Clerk docketed the Petition accompanying it with a
notation stating that Petitioner failed to prepay his filing fee of $5.00 and omitted to seek
in forma pauperis status.

id. However, the record shows that Petitioner submitted his

account statement with intent to proceed in this matter

forma pauperis. See Docket

Entry No. 1-1. Therefore, being mindful of Petitioner’s p litigant status, the Court
c
finds it warranted to dispense with unnecessary technicalities and, in light of the
information provided in the prison account statement, allow Petitioner to prosec
ute this
matter
2.

forma pauperis. The Court, therefore, now turns to the content of the Petition.

In his Petition, Petitioner asserted four Grounds for relief. See Docket Entry No. 1,
at 510. The first Ground raised challenges based on State v. Gilmore, 103 N.J. 508 (1986)
,
the second Ground alleged prosecutorial misconduct, and the third Ground asserte
da
claim based on United States v. Wade, 388 U.S. 218 (1967).

$ Docket Entry No. 1, at

5-8. Petitioner’s fourth Ground: (a) alleged that an improperly venued juror was
empaneled; but that Ground (b) was accompanied by a parenthetical statement reading,
“My appellate lawyer never appealed to Supreme Court. So please disregard this issue. I
won’t {sic be raising it.”
3.

[sb. at

10.1

Since Petitioner commenced a Section 2254 action, the Court is obligated to inform him
of his rights, pursuant to the holding of Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000).
Under the Antiterrorism and Effective Death Penalty Act, the petitioners challenging the
legality of their detention must marshal in one

§ 2254 application all the arguments they

have to collaterally attack that decision and file this one all-inclusive application within
one year of the date on which the judgment of conviction becomes final by the conclusion
of direct review or the expiration of the time for seeking such review.
ç 28 U.S.C.

§ 2244(d). Therefore, Petitioner may now tell the Court how he wants to proceed by
choosing one of the following two options: (a) have Petitioner’s pending
application ruled upon as is; or (b) withdraw Petitioner’s pending
file one all-inclusive

§ 2254

§ 2254 application and

§ 2254 application stating all his claims as to the decision he is

challenging. If Petitioner chooses option (a), then he will lose his ability to file a second
or successive application under

§ 2254, absent certification by the Court of Appeals and

extraordinary circumstances. If he chooses option (b), and his original application was
filed within the one-year statute of limitations under 28 U.S.C.

§ 2244(c), then the statute

The Court presumes that Petitioner was referring to: (a) the appellate counsel
representing Petitioner during his post-conviction relief proceedings; (b) the Suprem
e Court of
New Jersey; and (c) Petitioner’s intent not to prosecute his fourth Ground due to
the lack of
complete exhaustion.
2

of limitations will be tolled from the date Petitioner handed Petitioner’s original
application to prison officials for mailing to the Clerk of the Court until 45 days after
entry of this Notice and Order. Thus, if Petitioner’s instant

§ 2254 application was filed

within the one-year limitations period, he will have the 45-day response period to draft
and file his one all-inclusive
4.

§ 2254 application.

In addition, taking notice of Petitioner’s statement accompanying his fourth Ground, the
Court finds it warranted to clarify to Petitioner that he may seek stay and abeyance of this
matter under the holding of Rhines v. Weber, 544 U.S. 269 (2005). In the event
Petitioner applies for and is granted such stay, the Court will direct the Clerk to keep this
matter in administrative termination until Petitioner duly exhausts his unexhausted
challenges in all levels of the state court. Accord Urcinoli v. Cathel, 546 F.3d 269 (3d
Cir. 2008); Salas v. Warren, 2012 U.S. Dist. LEXIS 80014, at *8..9, n.4 (D.N.J. June 8,
2012) (citing case law in support of the proposition that, in an ambiguous scenario, the
court shall elect in favor of granting the Rhines stay so to ensure that a petitioner is not
disfranchised of his right to litigate all claims the petitioner wishes and entitled to
litigate). Correspondingly, Petitioner may now tell the Court if he wishes to seek stay and
abeyance or to proceed only with the claims he already exhausted.
2

5.

Finally, since Petitioner’s claims asserted thus far appear straight-forward, but the record
accrued in the state fora appears extensive, the Court finds it warranted to advance the
resolution of this matter by directing Respondents to file Petitioner’s state court record in

2

The information as to the availability of the Rhines stay shall not be construed as
expressing the Court’s opinion as to substantive validity or invalidity of Petitioner’s
challenges.
3

the instant matter. In the event a need arises, Respondents would be directed to submit an
answer to Petitioner’s challenges stating Respondents’ legal position, and Petitioner
would be allowed to traverse to the same.
IT IS, therefore, on this

day of

/

,

2013,

ORDERED that Petitioner’s implied application to proceed in this matter

forma

pauperis is granted; and it is further
ORDERED that Petitioner has 45 days from the entry of this Memorandum Opinion,
Notice and Order to file with the Clerk a letter or other written response signed by Petitioner
advising the Court how Petitioner would like to proceed with regard to his options ensuin
g from
the holding of Mason v. Meyers, 208 F.3d 414; and it is further
ORDERED that Petitioner has 45 days from the entry of this Memorandum Opinion,
Notice and Order to file with the Clerk a letter or other written response signed by Petitio
ner
advising the Court whether Petitioner wishes to seek stay and abeyance under the holdin of
g
Rhines v. Weber, 544 U.S. 269; and it is further
ORDERED that, in the event the Court receives no letter or other written response signed
by Petitioner within 45 days from the entry of this Memorandum Opinion, Notice and Order,
the
Court will rule on the Petition “as is,” addressing only Petitioner’s first three Grounds and
deeming Petitioner’s fourth Ground withdrawn and all other challenges forfeited; and it
is further
ORDERED that the Clerk shall serve this Memorandum Opinion, Notice and Order
upon
Respondents by certified mail, return receipt requested and duplicate that service
by the means of

4

electronic delivery upon the Office of the Attorney General for the State of New Jersey. The
3
electronic notice shall state, on the “subject” line, “COUNSEL APPEARANCE AND LIMIT
ED
ANSWER REQUIRED”; and it is further
ORDERED that, within 45 days from the date of entry of this Memorandum Opinio
n,
Notice and Order, Respondents shall file a limited answer to the Petition consisting of: (1)
all
counseled and p

briefs that Petitioner submitted in a trial-level or appellate court contesting

his conviction or sentence, or contesting an adverse judgment or order in a post-co
nviction
proceeding; (2) any brief that the prosecution submitted in a trial-level or appellate court
relating
to the conviction or sentence; (3) all opinions and dispositive orders issued by the state
courts in
relation to Petitioner’s conviction or sentence, be these opinions and orders render
ed during
direct appellate or post-conviction proceedings; and (4) full transcript of Petitioner’s
trial, as well
as the transcripts of his pre-trial and post-conviction relief hearings, if any such hearing
s were
held; and it is further
ORDERED that the limited answer shall be accompanied by an index of the aforesa
id
exhibits. The index shall refer to each exhibit by the docket entry of each exhibi
t, as these
docket entries are made in the instant matter, not in the state courts; and it is
further
ORDERED that Respondents shall file such limited answer and the index of exhibit
s
electronically; and it is finally
ORDERED that the Clerk shall serve this Memorandum Opinion, Notice and
Order upon

Such electronic notice shall be emailed to DCJAppellatenjdcj .org and addres
sed to
Mr. Paul H. Heinzel, DAG, Chief, Appellate Bureau.
5

Petitioner by certified mail, return receipt requested.

‘L. Linares
United States District Judge

6