POLO v. ORTIZ et al

Filing 2

MEMORANDUM AND ORDER ADMINISTRATIVELY DISMISSING CASE: It is ORDERED that 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; and it is further ORDERED that the Clerk's service of the blank section 2255 form shall not be construed as this Court's finding that the motion is or is not timely, or that petitioner's cla ims are or are not procedurally defaulted; and it is further ORDERED that if petitioner wishes to reopen this case, he shall so notify the Court, in writing within thirty (30) days of the date of entry of this Memorandum and Order; 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, etc. Signed by Judge Kevin McNulty on 8/25/2016. (seb)

UNITED STATES DISTRICT COtJRT
DISTRICT OF NEW JERSEY
JACK E. POLO,
Civ. No. 16-5 137 (KM)
Petitioner,
v.

MEMORANDUM AND ORDER

WARDEN DAVID D. ORTIZ, et al.,
Respondents.

Pro se petitioner is a federal prisoner and seeks to file a motion to vacate pursuant 28

U.S.C.

§ 2255.

Local Civil Rule 81.2 provides:
Unless prepared by counsel,.. motions under 28 U.S.C. §2255
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 updated habeas form supplied by the Clerk tbr section
2255 motions, i.e., A0243 (modified): DNJ-Habeas-004 (Rev. 01-2014). Accordingly, petitioner
shall be ordered to complete and file his

§ 2255 motion on the blank updated form provided by

the Clerk. NOTE: Petitioner may attach the typewritten petition that he previously
submitted to this Court to the completed

§ 2255 form and incorporate it by reference.

Therefore, IT IS this 25th day of August, 2016,
ORDERED that the Clerk of the Court shall administratively terminate this case;
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 Papollo v. Hartford Life & Acc. Ins. Co., 731 F.3d
265, 275 (3d Cir. 2013) (distinguishing administrative terminations from dismissals); Jenkins v.
Superintendent ofLaurel Highlands, 705 F.3d 80, 84 n.2 (3d Cir. 2013) (describing prisoner

mailbox rule generally); Dasilva v. Sheriffs Dep’l., 413 F. App’x 498, 502 (3rd Cir. 2011)
(“[‘fhel statute of limitations is met when a [motionj is submitted to the clerk before the statute
runs

....“);

and it is further

ORDERED that the Clerk’s service of the blank section 2255 form shall not be construed
as this Court’s tinding that the motion is or is not timely, or that petitioner’s claims are or are not
procedurally defaulted; and it is further
ORDERED that if petitioner wishes to reopen this case, he shall so notify the Court, in a
writing addressed to the Clerk of the Court, Martin Luther King Building & U.S. Courthouse, 50
Walnut Street, Newark, NJ 07101, within thirty (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 updated form supplied by the Clerk; 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
and a blank section 2255 form A0243 (modified): DNJ-Habeas-004 (Rev. 01-20 14) upon
-

petitioner by regular U.S. mail.

K VIN MCNtJLTY
United States District Judge

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