ALVAREZ v. NOGAN et al

Filing 6

MEMORANDUM and ORDER that Petitioner will have 45 days from the entry of this 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, etc. Signed by Judge Claire C. Cecchi on 9/16/14. (jd, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HECTOR S. ALVAREZ,
Civil Action No. 14-1397 (CCC)
Petitioner,
v.

MEMORANDUM AND ORDER

:

PATRICK A. NOGAN, et al.,
Respondents.

CECCHI, District Judge
This matter having come before the Court upon pro se Petitioner’s filing of a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C.

§ 2254 and previously having been terminated

because Petitioner did not pay the $5 filing fee for a habeas petition as required by Local Civil
Rule 54.3(a) or submit appropriate materials in application to proceed informa pauperis in
compliance with Local Civil Rule 81.2(b); and
It appearing that Petitioner has now paid the $5 filing fee; and
It appearing that:
1.

Petitioner has filed a Petition for a writ of habeas corpus under 28 U.SC.

§ 2254.

This Court is required by Mason v, Meyers. 208 R3d 414 (3d Cir, 2000), to notify Petitioner of
the following consequences of filing such a Petition under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”) and to give Petitioner an opportunity to file one all-inclusive ,S 2254
Petition.

2.

Under the AEDPA, prisoners challenging the legality of their detention pursuant

to the judgment of a State court must marshal in one

§ 2254 Petition all the arguments they have

to collaterally attack the State judgment and, except in extremely limited circumstances, file this
one all-inclusive Petition 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. See 28 U.S.C.

§ 2244(d). Absent extremely limited circumstances and the prior

approval of the United States Court of Appeals for the Third Circuit, a claim presented in a
second or successive
3,

§ 2254 petition shall be dismissed. See 28 U.S.C. § 2244(b).

This one all-inclusive

§ 2254 Petition must specify all the grounds for relief

available to Petitioner, state the facts supporting each ground, state the relief requested, be
typewritten or legibly handwritten, be signed under penalty of perjury by Petitioner or an
authorized person, and substantially follow the form appended to the Habeas Rules. See 28
U.S.C.

§ 2254 Rule 2(c) & (d).
4.

The district court may not grant a writ of habeas corpus under 28 U.S.C.

§ 2254

unless the applicant has exhausted the remedies available in the courts of the State or exhaustion
is excused under 28 U.S.C.

§ 2254(b)(l)(B) because there is an absence of available State

corrective process or circumstances exist that render such process ineffective to protect the rights
of the applicant. See Rainev v. Varner. 603 F.3d 189, 198 (2010) (“federal courts may grant a
state prisoner’s habeas petition only if petitioner has exhausted the remedies available in the
courts of the State”) (citations and internal quotation marks omitted); see also Henderson v.
Frank. 155 F. 3d 159. 164 (3d Cir. 1998): Lambert v. Blackwell. 134 F.3d 506, 513 (3d Cir.
1997); Toulson v. Bever, 987 F.2d 984 (3d Cir. 1993). Exhaustion requires a petitioner

challenging a New Jersey conviction under

§ 2254 to have fairly presented each federal ground

raised in the petition to all three levels of New Jersey courts. See Rainey, 603 F.3d at 198;
O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Rose v. Lundy, 455 U.S. 509 (1982).

5.

If Petitioner intends the Petition as filed to be the one all-inclusive

§

2254

Petition, Petitioner may now tell the Court how to proceed by choosing one of the following
options and notifying the Clerk of the choice pursuant to the terms of this Notice and Order:

§ 2254 Petition ruled upon as filed; or

a.

Have the pending

b.

Withdraw the pending

§

2254 Petition and file one all-inclusive

§ 2254

petition subject to the one-year statute of limitations.
6.

If Petitioner choose option 5.a. above and this Court decides the merits of

Petitioner’s claims, then Petitioner will lose the ability to file a second or successive petition
under

§ 2254, absent certification by the Court of Appeals for the Third Circuit and extraordinary

circumstances.
If Petitioner chooses option 5.b. above and the original Petition was filed within the oneyear statute of limitations under 28 U.S.C.

§ 2244(c), then the statute of limitations will be tolled

from the date the original Petition was handed to prison officials for mailing to the Clerk of the
Court until 45 days after entry of this Notice and Order. Under these circumstances, if the

§ 2254 Petition was filed within the one-year limitations period, Petitioner will have the

original

45-day response period plus any time remaining within the one-year statute of limitations period
(as of the date Petitioner filed the original application) to draft and file one all-inclusive
Petition,

7.

This Court makes no finding as to the timeliness of the Petition as filed,

IT IS on this

iL

—

day ofck, 2014, hereby

3

§ 2254

ORDERED that the Clerk shall reopen this matter by making a separate entry on the

docket to indicate that the matter has been reopened; and it is further
ORDERED that Petitioner will have 45 days from the entry of this 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; and it is further
ORDERED that, if Petitioner does not file a signed response choosing one of the above

options within 45 days of the entry of this Notice and Order, then the Court will rule on the
Petition as filed.

CLAIRE C. CECCHI
United States District Judge

4