MCGILL v. NOGAN et al

Filing 2

MEMORANDUM and ORDER that the Clerk of the Court shall administratively terminate this case, without filing the petition or assessing a filing fee; that the Clerk forward certain forms; that if Petitioner wishes to reopen this case he shall notify the Court, in writing, within 30 days and the Court will direct the Clerk to reopen the matter. Signed by Judge Joel A. Pisano on 10/7/2014. (mmh)

NOT FOR PUBLICATION

CLOSED

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JOHN MCGILL,
Petitioner,
v.
PATRICK NOGAN,
Respondent.

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Civil Action No. 14-6126 (JAP)

MEMORANDUM AND ORDER

It appearing that Pro se Petitioner John McGill, a prisoner confined at East Jersey State Prison,
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).
Additionally, Petitioner did not did not pay the $5 filing fee for a habeas petition as required
by Local Civil Rule 54.3(a) or submit a completed application to proceed in forma pauperis in
compliance with Local Civil Rule 81.2(b).
THEREFORE, IT IS on this 7th day of October, 2014;
ORDERED that the Clerk of the Court shall administratively terminate this case, without
filing the petition 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 Papotto v. Hartford
Life & Acc. Ins. Co., 731 F.3d 265, 275 (2013) (distinguishing administrative terminations from
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dismissals); 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 [petition] 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, Clarkson S. Fisher U.S. Courthouse and Federal Bldg., 402 East
State Street, Trenton, New Jersey 08608, 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 either: (1) a complete in forma pauperis application, including a certification of Petitioner’s
institutional account, as required by Local Civil Rule 81.2(b) or (2) the $5 filing fee; 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/ Joel A. Pisano
JOEL A. PISANO
United States District Judge

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