SIMMONS v. JOHNSON et al
MEMORANDUM AND ORDER directing the Clerk to administratively terminate this case w/out filing the complaint 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. The Clerk shall forward Petitioner a blank habeas petition form, and if Petitioner wishes to reopen the case he shall so notify the Court in writing; etc. Signed by Judge Esther Salas on 11/2/15. (sr, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-7551 (ES)
MEMORANDUM AND ORDER
IT APPEARING THAT:
Pro se Petitioner Malik Simmons, a prisoner confined at New Jersey State Prison in
Trenton, New Jersey, 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 2nd day of November, 2015;
ORDERED that the Clerk of the Court shall ADMINISTRATIVELY TERMINATE this
case, without filing the complaint 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 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 complaint 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, he shall so notify the Court, in
writing addressed to the Clerk of the Court, Martin Luther King Building & U.S. Courthouse, 50
Walnut Street, Newark, NJ 07101, 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 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/ Esther Salas
Esther Salas, U.S.D.J.
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