TUCKER v. FISHMAN

Filing 2

MEMORANDUM and ORDER administratively terminating this case, without filing the petition or assessing a filing fee, etc; that the Clerk of the Court shall forward Petitioner a blank habeas petition form-AO 241 (modified):DNJ-Habeas- 008(Rev.01- 2014, etc.; if Petitioner wishes to reopen this case, he shall so notify the Court, in writing within 30 days of the date of entry of this Memorandum and Order; Petitioner's writing shall include a complete, signed habeas petition on the appropriate form, etc. Signed by Judge Faith S. Hochberg on 9/24/14. (jd, )

NOT FOR PUBLICATION

CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GERALD TUCKER,
Petitioner,
v.
MR. FISHMAN,
Respondent.

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Civil Action No. 14-5895 (FSH)

MEMORANDUM AND ORDER

Pro se Petitioner Gerald Tucker, currently confined at Elizabeth Nursing and
Rehabilitation Center, seeks to bring a habeas petition pursuant to 28 U.S.C. § 2254. Local Civil
Rule 81.2 provides:
Unless prepared by counsel, petitions to this Court for a writ of
habeas corpus . . . shall be in writing (legibly handwritten in ink or
typewritten), signed by the petitioner or movant, on forms supplied
by the Clerk.
L.Civ.R. 81.2(a). Petitioner did not use the habeas form supplied by the Clerk for section 2254
petitions, i.e., AO 241 (modified):DNJ-Habeas-008(Rev.01-2014).
THEREFORE, it is on this 24th day of September, 2014;
ORDERED that the Clerk of the Court shall administratively terminate this case, without
filing the petition or assessing a filing fee; Petitioner is informed that administrative termination
is not a “dismissal” for purposes of the statute of limitations, and that if the case is reopened, it is
not subject to the statute of limitations time bar if it was originally filed timely, see Papotto v.
Hartford Life & Acc. Ins. Co., 731 F.3d 265, 275 (2013) (distinguishing administrative

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terminations from dismissals); Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84
n.2 (2013) (describing prisoner mailbox rule generally); Dasilva v. Sheriff's Dep’t., 413 F. App’x
498, 502 (3rd Cir. 2011) (per curiam) (“[The] statute of limitations is met when a [petition] is
submitted to the clerk before the statute runs ….”); and it is further
ORDERED that the Clerk of the Court shall forward Petitioner a blank habeas petition
form—AO 241 (modified):DNJ-Habeas-008(Rev.01-2014); and it is further
ORDERED that the Clerk’s service of the blank habeas petition form shall not be
construed as this Court’s finding that the original petition is or is not timely, or that Petitioner’s
claims are or are not duly exhausted; and it is further
ORDERED that if Petitioner wishes to reopen this case, she shall so notify the Court, in
writing addressed to the Clerk of the Court, M.L. King, Jr. Federal Bldg. & U.S. Courthouse, 50
Walnut Street, Newark, New Jersey, 07102, within 30 days of the date of entry of this
Memorandum and Order; Petitioner’s writing shall include a complete, signed habeas petition on
the appropriate form; and it is further
ORDERED that upon receipt of a writing from Petitioner stating that he wishes to reopen
this case, and including a complete, signed petition, the Clerk of the Court will be directed to
reopen this case; and it is finally
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum and Order
upon Petitioner by regular U.S. mail.

s/ Faith S. Hochberg
FAITH S. HOCHBERG
United States District Judge

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