BLACKNALL v. HOLMES
Filing
2
MEMORANDUM OPINION filed. Signed by Judge Joel A. Pisano on 9/21/2012. (eaj)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
MICHAEL BLACKNALL,
:
:
Petitioner,
:
:
v.
:
:
CHRISTOPHER HOLMES,
:
:
Respondent.
:
:
______________________________:
Civil Action No. 12-5839 (JAP)
MEMORANDUM OPINION
APPEARANCES:
Petitioner pro se
Michael Blacknall
South Woods State Prison
Bridgeton, NJ 08302
PISANO, District Judge
Petitioner Michael Blacknall, a prisoner confined at South
Woods State Prison in Bridgeton, New Jersey, has filed a Petition
for
Writ
of
challenging
Habeas
his
weapons charges.
Corpus,
conviction
on
pursuant
to
aggravated
28
U.S.C.
assault
and
§
2254,
various
Petitioner neither prepaid the filing fee nor
submitted an application for leave to proceed in forma pauperis.
The Filing Fee Requirement
The filing fee for a petition for writ of habeas corpus is
$5.00.
Pursuant to Local Civil Rule 54.3(a), the filing fee is
required to be paid at the time the petition is presented for
filing.
Alternatively, pursuant to Local Civil Rule 81.2(b),
whenever a prisoner submits a petition for writ of habeas corpus
and seeks to proceed in forma pauperis, that petitioner must submit
(a) an affidavit setting forth information which establishes that
the
petitioner
is
unable
to
pay
the
fees
and
costs
of
the
proceedings, and (b) a certification signed by an authorized
officer of the institution certifying (1) the amount presently on
deposit in the prisoner’s prison account, and (2) the greatest
amount on deposit in the prisoners institutional account during the
six-month period prior to the date of the certification.
institutional
account
of
the
petitioner
exceeds
If the
$200,
the
petitioner shall not be considered eligible to proceed in forma
pauperis.
Local Civil Rule 81.2(c).
Petitioner did not prepay the $5.00 filing fee for a habeas
petition
as
required
by
Local
Civil
Rule
54.3(a),
nor
did
Petitioner submit an application for leave to proceed in forma
pauperis.
Accordingly, the Petitioner will be administratively
terminated for failure to satisfy the filing fee requirement.
Petitioner will be granted leave to apply to re-open by either
prepaying the filing fee or submitting a complete application for
leave to proceed in forma pauperis.
In addition, to the extent
Petitioner seeks leave to re-open, the Court will address herein
certain other issues.
The “Mason” Notice/ Exhaustion Requirement
Petitioner states in the Petition that he has not exhausted
Ground Nine (ineffective assistance of counsel on direct appeal),
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which is presently pending before the state courts through a state
petition for post-conviction relief. Petitioner states that he has
not exhausted this claim because there are only fourteen months
left on his state sentence, and by the time he exhausts this claim,
he may no longer be in custody to pursue his claims through a
federal § 2254 petition.
A state prisoner applying for a writ of habeas corpus in
federal court must first “exhaust[] the remedies available in the
courts of the State,” unless “there is an absence of available
State corrective process[] or ... circumstances exist that render
such process ineffective ... .”
28 U.S.C. § 2254(b)(1).
See also
Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert v. Blackwell, 134
F.3d 506, 513 (3d Cir. 1997), cert. denied, 532 U.S. 919 (2001)
(finding that “Supreme Court precedent and the AEDPA mandate that
prior to determining the merits of [a] petition, [a court] must
consider whether [petitioner] is required to present [his or her]
unexhausted claims to the [state’s] courts”).
The exhaustion requirement is intended to allow state courts
the first opportunity to pass upon federal constitutional claims,
in furtherance of the policies of comity and federalism. Granberry
v.
Greer,
481
U.S.
129
(1987);
Rose,
455
U.S.
at
516-18.
Exhaustion also has the practical effect of permitting development
of a complete factual record in state court, to aid the federal
courts in their review.
Rose, 455 U.S. at 519.
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Moreover, the exhaustion doctrine is a “total” exhaustion
rule.
That is, “a district court must dismiss habeas petitions
containing
both
unexhausted
petitions)].”
Lundy,
455
and
exhausted
U.S.
at
claims
522.
Under
[(‘mixed’
certain
circumstances, where dismissal under Lundy would jeopardize a
prisoner’s timely presentation of his federal claims to a federal
court,
a
federal
court
may
stay
the
federal
petition
exhaustion of the prisoner’s claims in state court.
until
See Rhines v.
Weber, 544 U.S. 269, 277-78 (2005); Crews v. Horn, 360 F.3d 146,
151 (3d Cir. 2004).
Here, the allegations of the Petition do not suggest that
dismissal would jeopardize Petitioner’s ability to timely return to
federal court following exhaustion of his unexhausted claim in
state court.
The New Jersey Supreme Court denied certification in
Petitioner’s direct appeal on February 27, 2012.
Blacknall, 209 N.J. 430 (2012).
See State v.
Petitioner’s conviction became
final ninety-days later, on May 27, 2012, when the deadline expired
for filing a petition for writ of certiorari with the United States
Supreme Court.
Before that date, on April 24, 2012, Petitioner
filed his state petition for post-conviction relief.
Accordingly,
it appears that the Petition would be subject to dismissal without
prejudice as a “mixed” petition.
This Court is required by Mason v. Meyers, 208 F.3d 414 (3d
Cir. 2000), to notify Petitioner of the following consequences of
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filing a § 2254 Petition under the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) and to give Petitioner an opportunity
to file one all-inclusive § 2254 Petition.
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)(1) (limitations
period) and § 2244(d)(2) (tolling provision).
bring a
“second
or
successive”
petition
A prisoner may not
under
§
2254
unless
authorized by the Court of Appeals upon a showing of certain
extraordinary circumstances.
See 28 U.S.C. § 2244(b).
It is not apparent to the Court whether Petitioner intends
this Petition to be his one all-inclusive § 2254 Petition.
Therefore, if Petitioner applies to re-open this matter, he must
advise the Court at that time as to how he wants to proceed by
choosing one of the following options and notifying the Clerk of
his choice pursuant to the terms of the accompanying Order:
(a) have the pending § 2254 Petition ruled upon as filed, knowing
that it will likely be dismissed without prejudice as a “mixed”
petition; or (b) withdraw the unexhausted Ground Nine and proceed
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only with the exhausted claims, knowing that he will likely lose
forever the ability to raise Ground Nine in a federal habeas
petition; or (c) withdraw the pending § 2254 Petition and file one
all-inclusive § 2254 petition subject to the one-year statute of
limitations.
CONCLUSION
For the reasons set forth above, the Clerk of the Court will
be ordered to administratively terminate the Petition without
prejudice.
Petitioner will be granted leave to apply to re-open
within 30 days, by either prepaying the filing fee or submitting a
complete application for leave to proceed in forma pauperis, and by
advising the Court how he wishes to proceed.
An appropriate Order will be entered.
/s/ Joel A. Pisano
JOEL A. PISANO
United States District Judge
Dated: September 21, 2012
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