TYLER v. JOHNSON et al

Filing 16

MEMORANDUM and ORDER that if Petitioner fails to respond to this Order within 30 days, the Petition may be subject to dismissal without prejudice as a mixed petition. The Clerk of the Court shall ADMINISTRATIVELY TERMINATE this action pending Petitioners response to the Courts Order. The Clerk of the Court shall send a copy of this Order and a copy of the Amended Petition (ECF No. 15 ) to Petitioner. etc. Signed by Judge Madeline Cox Arleo on 7/8/2019. (dam, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Civil Action No. 16-5081(MCA)

TORY TYLER,
Petitioner,

MEMORANDUM AND ORDER

v.
STEPHEN JOHNSON, Ct aJ.,
Respondents.

This mailer has been opened to the Court by Petitioner’s filing of an Amended Petition
fora Writ of Habeas Corpus pursuant to 28 U.S.C.

§

2254. (BCE No. 15.)

Petitioner’s Petition was docketed on August 19, 2016. (ECF No, 1.) The form submitted
by Petitioner contains the required notice pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir.
2000). (See icY, at 17.) By Order dated October 17, 2016, the Court directed Respondents to
answer the Original Petition. (BCE No. 3.) On February 3. 2017, Respondents filed their
Answer, arguing in relevant part that the Petition is subject to dismissal for failure to exhaust
state court remedies with respect to Grounds Three, Four, and Five. (ECF No. 10, Answer at
27.) Ground Three of the Original Petition asserted that the trial court erred in failing to taiLor
the passion provocation instruction under state law. Ground Four asserted that the trial court
committed reversible error when instructing the jury that it must “first” acquit Petitioner of
murder before considering passion provocation manslaughter. Ground Five asserted ineffective
assistance of both trial and appellate counsel for failing to object to or challenge the erroneous

jury instructions. (See Petition at 8-1 1.) In the Original Petition, Petitioner appears to assert that
he filed a second petition for post-conviction relief in which he asserted the following claims:
1.) The Trial Court Erred by Failing to Tailor the Passion
Provocation Instruction to the Rulings in State v. Giudo arid
State v. Coyle. 2.) Trial Court Committed Reversible Error
When Instructing the Jury that It Must First Acquit Petitioner
on Murder Before Considering Passion Provocation
Manslaughter; and 3.) Ineffective Assistance of both Appellate
or Failing to Object, Challenge, and/or
and Trial Counsel
Raise the herein Erroneous Jury Instructions.
(ECF No. 1, Pet, at 14.)
In response to Respondents’ Answer, Petitioner filed a motion for a stay, in which he
states as foJlows:
6. In filing my petition, some of my issues were not exhausted in
the State courts as stated in my petilion.
7. I still have other issues that are unexhausted in the State courts.
(ECF No, 11-1, Certification at

¶ 6-7.)

By Order dated October 31, 2017, the Court denied Petitioner’s motion for a stay without
prejudice because Petitioner’s motion did not meet the requirements for a stay by showing (1)
that his unexhausted claims are potentially meritorious, (2) that he has good cause for failing to
exhaust, and (3) the absence of intentionally dilatory litigation tactics. See Rhines v. Weber, 544
U.s. 269, 276 (2005). The Court permitted Petitioner to file a new motion for a stay within 45
days that complies with Rhines together with an Amended Petition that asserts all claims
Petitioner sought to bring in his one all-inclusive habeas petition.
Petitioner did not file a new motion to stay together with an Amended Petition. Instead,
on February 5,2018, Petitioner submitted an Amended Petition. (See ECF No. 15). It is not
clear from the Amended Petition whether Petitioner is still seeking a stay to exhaust any
unexhausted claims and/or whether he has elected to delete certain claims from the Original
Petition.
2

As such, the Court will direct Petitioner to clarify whether the Amended Petition is his
all-inclusive Petition, whether he is still seeking a stay to exhaust any unexhausted claims in the
Amended Petition, and whether he is seeking to delete any claims from his Original Petition.
The Court will administratively terminate this matter pending Petitioner’s response to the Court’s
Order. If Petitioner does not reply to the Court’s Order, the Petition may be subject to dismissal
as a mixed petition.
IT IS THEREFORE, on this

day of

,

019,

ORDERED that, within 30 days of the date of this Order, Petitione shall clarify in
writing whether (I) the Amended Petition (ECF No. 15) is his all-inclusive Petition, (2) whether
he is still seeking a stay to exhaust any unexhausted claims in the Amended Petition, and (3)
whether he has elected to delete any claims from the Original Petition;’ and it is ffirther
ORDERED that if Petitioner fails to respond to this Order within 30 days, the Petition
may be subject to dismissal without prejudice as a mixed petition; and it is further
ORDERED that the Clerk of the Court shall ADMINISTRATIVELY TERMINATE
this action pending Petitioner’s response to the Court’s Order;2 and it is further
ORDERED that the Clerk of the Court shall send a copy of this Order and a copy of the
Amended Petition (ECF No. 15) to Petitioner at the address

Madeline Cox Arleo, District Judge
United States District Court

‘In his writing to the Court, Petitioner should clearly identify which claims, if any, for which he
seeks a stay and which claims, if any. that he elects to delete.
2

Petitioner is advised that administrative termination is not a dismissal, and the Court retains
jurisdiction over his case, and will direct the Clerk of the Court to reopen this matter for
adjudication once Petitioner responds to the Court’s Order.
3