NEWELL v. STATE OF NEW JERSEY et al
Filing
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MEMORANDUM OPINION. Signed by Judge Esther Salas on 4/2/2013. (nr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
MARVIN R. NEWELL,
Petitioner,
v.
STATE OF NEW JERSEY, et al.,
Respondents.
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Civil Action No. 13-1228 (ES)
MEMORANDUM OPINION
SALAS, District Judge
Petitioner Marvin R. Newell, a convicted and sentenced prisoner
confined at East Jersey State Prison in Rahway, New Jersey, has filed
a Petition for writ of habeas corpus, pursuant to 28 U.S.C. ' 2254,
challenging his conviction on carjacking, robbery, and related
charges.
The Filing Fee
The filing fee for a petition for writ of habeas corpus is $5.00.
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 81.2(b), whenever a prisoner submits a petition
for writ of habeas and seeks to proceed in forma pauperis, that
petitioner must submit (a) an affidavit setting forth information
which establishes that the petitioner is unable to pay the fees and
costs of the proceedings, and (b) a certification signed by an
authorized officer of the institution certifying (1) the amount
presently on deposit in the prisoner=s prison account and, (2) the
greatest amount on deposit in the prisoners 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 in forma
pauperis.
Local Civil Rule 81.2(c).
Petitioner did not prepay the $5.00 filing fee for a habeas
petition as required by Local Civil Rule 54.3(a), nor did Petitioner
submit an application for leave to proceed in forma pauperis.
Accordingly, this action will be administratively terminated for
failure to satisfy the filing fee requirements.
The Respondent
Petitioner has named as Respondents the State of New Jersey and
the Attorney General of New Jersey.
Petitioner has not named, as
a Respondent, the administrator of East Jersey State Prison.
Among other things, 28 U.S.C. ' 2242 requires the petition for
a writ of habeas corpus to allege “the name of the person who has
See also 28 U.S.C. ' 2243 (“The
custody over [the petitioner].”
writ, or order to show cause shall be directed to the person having
custody of the person detained.”).
“[T]hese provisions contemplate
a proceeding against some person who has the immediate custody of
the party detained, with the power to produce the body of such party
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before the court or judge, that he may be liberated if no sufficient
reason is shown to the contrary.”
Wales v. Whitney, 114 U.S. 564,
574 (1885) (emphasis added).
In accord with the statutory language and Wales=
immediate custodian rule, longstanding practice confirms
that
in
habeas
challenges
to
present
physical
confinement—“core challenges”—the default rule is that
the proper respondent is the warden of the facility where
the prisoner is being held, not the Attorney General or
some other remote supervisory official.
Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004) (citations omitted).
Rule 2 of the Rules Governing Section 2254 Cases in the United
States District Courts provides similar guidance.
(a) Current Custody: Naming the Respondent.
If the
petitioner is currently in custody under a state-court
judgment, the petition must name as respondent the state
officer who has custody.
Rule 2(a), Rules Governing Section 2254 Cases.
Thus, under the circumstances of this case, the warden of the
facility where the petitioner is held is an indispensable party
respondent, for want of whose presence the Petition may not proceed.
Under the circumstances of this case, where Petitioner is presently
confined pursuant to the challenged conviction, neither the State
of New Jersey, nor the Attorney General of New Jersey is a proper
respondent.
Accordingly, Petitioner will be granted leave to apply
to re-open and to file an amended petition naming a proper respondent.
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This Court makes no finding as to the timeliness of the Petition
as filed.
CONCLUSION
For the reasons set forth above, the Clerk of the Court will
be ordered to administratively terminate the Petition without
prejudice.
Petitioner will be granted leave to apply to re-open
within 30 days, by (1) submitting an amended petition naming a proper
respondent and (2) either prepaying the filing fee or submitting a
complete application for leave to proceed in forma pauperis.
An appropriate Order will be entered.
s/Esther Salas
Esther Salas
United States District Judge
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