FRITZ v. STATE OF NEW JERSEY et al
Filing
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MEMORANDUM OPINION. Signed by Judge Freda L. Wolfson on 12/19/2012. (gxh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRANDON J. FRITZ,
Petitioner,
v.
STATE OF NEW JERSEY, et al.,
Respondents.
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Civil Action No. 12-7530 (FLW)
MEMORANDUM OPINION
APPEARANCES:
Petitioner pro se
Brandon J. Fritz
New Jersey State Prison
Trenton, NJ 08625
WOLFSON, District Judge
Petitioner Brandon J. Fritz, a prisoner confined at New
Jersey State Prison at Trenton, New Jersey, has filed a Petition
for writ of habeas corpus, pursuant to 28 U.S.C. § 2254,
challenging his conviction for aggravated sexual assault,
kidnapping, and burglary.1
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This is the second petition Petitioner has filed
challenging these convictions. The first was administratively
terminated for failure to pay the filing fee or to submit a
complete application for leave to proceed in forma pauperis. See
Fritz v. State of New Jersey, Civil No. 12-4342 (FLW). In
response to the filing of the petition in Civil Action No. 124342, this Court gave Petitioner the notice required by Mason v.
Meyers, 208 F.3d 414 (3d Cir. 2000). Accordingly, this Court
will not give Petitioner a second Mason notice, but will proceed
with respect to this Petition, as filed.
A.
The Filing Fee
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.
Pursuant to Local Civil Rule 81.2(b), whenever a
prisoner submits a petition for writ of habeas 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.
If
the institutional account of the petitioner exceeds $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).
Petitioner did
submit an application for leave to proceed in forma pauperis.
However, he failed to submit the required certification, signed
by an authorized officer of the institution, regarding his
institutional account.
Accordingly, this action will be
administratively terminated for failure to satisfy the filing fee
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requirement.
Petitioner will be granted leave to apply to re-
open by either prepaying the $5 filing fee or submitting a
complete application for leave to proceed in forma pauperis, to
be accompanied by the required certification as to his
institutional account.
B.
The Lack of a Proper Respondent
Among other things, 28 U.S.C. § 2242 requires the petition
for a writ of habeas corpus to allege “the name of the person who
has custody over [the petitioner].”
See also 28 U.S.C. § 2243
(“The writ, or order to show cause shall be directed to the
person having custody of the person detained.”).
“[T]hese provisions contemplate a proceeding against some
person who has the immediate custody of the party detained, with
the power to produce the body of such party before the court or
judge, that he may be liberated if no sufficient reason is shown
to the contrary.”
Wales v. Whitney, 114 U.S. 5674, 574 (1885)
(emphasis added).
In accord with the statutory language and Wales’
immediate custodian rule, longstanding practice
confirms that in habeas challenges to present physical
confinement - “core challenges” - the default rule is
that the proper respondent is the warden of the
facility where the prisoner is being held, not the
Attorney General or some other remote supervisory
official.
Rumsfeld v. Padilla, 542 U.S. 426, 434-436 (2004) (citations
omitted).
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Rule 2 of the Rules Governing Section 2254 Cases in the
United States District Courts provides similar guidance.
(a) Current Custody: Naming the Respondent. If the
petitioner is currently in custody under a state-court
judgment, the petition must name as respondent the
state officer who has custody.
(b) Future Custody: Naming the Respondents and
Specifying the Judgment. If the petitioner is not yet
in custody - but may be subject to future custody under the state-court judgment being contested, the
petition must name as respondents both the officer who
has current custody and the attorney general of the
state where the judgment was entered. ...
Rule 2(a) and (b), Rules Governing Section 2254 Cases.
Thus, under the circumstances of this case, the warden of
the facility where the petitioner is held is an indispensable
party respondent, for want of whose presence the petition may not
proceed.
Under the circumstances of this case, where Petitioner
is presently confined pursuant to the challenged conviction,
neither the State of New Jersey nor the Attorney General of New
Jersey is a proper respondent.
Accordingly, Petitioner will be
granted leave to apply to re-open and to file an amended petition
naming a proper respondent.
This Court makes no finding as to the timeliness of the
Petition as filed.
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
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within 30 days, by either prepaying the filing fee or submitting
a complete application for leave to proceed in forma pauperis and
by accompanying such application with an amended petition naming
a proper respondent.
An appropriate Order will be entered.
s/Freda L. Wolfson
Freda L. Wolfson
United States District Judge
Dated: December 19, 2012
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