SOTO v. ARTHUR et al

Filing 2

MEMORANDUM OPINION and ORDER. Signed by Judge Anne E. Thompson on 7/16/2015. (mmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

SOTO, et al.,
Civil Action
No. 98-2574 (AET)

Plaintiffs,
v.

MEMORANDUM OPINION AND ORDER
BEHOT, et al.,
Defendants.

THOMPSON, District Judge:
The Court is in receipt of a letter from Plaintiff Maritza
Soto, a convicted and sentenced state prisoner at Edna Mahan
Correctional Facility (“EMCF”), dated May 27, 2015. (Docket
Entry 6).
1.

This action was voluntarily dismissed by Plaintiffs on

December 28, 1998. (Docket Entry 4).
2.

No documents were received by this Court from

Plaintiff until the submission of her letter dated May 27, 2015.
(Docket Entry 6).
3.

Plaintiff’s letter appears to challenge a sentence

imposed by the State of New Jersey.
4.

Challenges to state sentences and convictions may only

be brought as a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254.

5.

The Court interprets Plaintiff’s letter as an attempt

to file a petition for writ of habeas corpus pursuant § 2254.
6.

The Clerk of the Court shall be directed to open a new

§ 2254 matter, assigning a new docket number, naming Maritza
Soto as the Petitioner. The letter, entered in this matter as
Docket Entry 6, shall be entered as the first entry under that
new number.
7.

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). Plaintiff did not use the habeas form
supplied by the Clerk for section 2254 petitioners, i.e., AO241
(modified).
8.

Plaintiff also did not submit the $5.00 filing fee or

an application to proceed in forma pauperis.
9.

The Clerk of the Court shall be directed to provide

Plaintiff with a blank AO241 (modified) form and a blank
application to proceed in forma pauperis.
10.

Should Plaintiff wish to pursue her habeas petition

before this Court, she shall return the § 2254 form and either
the filing fee or in forma pauperis application to the Clerk of
the Court for filing under the new docket number.

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11.

Plaintiff is advised that under the Antiterrorism and

Effective Death Penalty Act (“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). Absent extremely limited circumstances and the
prior approval of the United States Court of Appeals for the
Third Circuit, a claim presented in a second or successive §
2254 petition shall be dismissed. See 28 U.S.C. § 2244 (b).
12.

This one all-inclusive § 2254 Petition must specify all

the grounds for relief available to the petitioner, state the facts
supporting each ground, state the relief requested, be typewritten
or legibly handwritten, be signed under penalty of perjury by the
petitioner or an authorized person, and substantially follow the
form appended to the Habeas Rules. See 28 U.S.C. § 2254 Rule 2(c) &
(d).

13.

The district court may not grant a writ of habeas corpus

under 28 U.S.C. § 2254 unless the applicant has exhausted the
remedies available in the courts of the State or exhaustion is
excused under 28 U.S.C. § 2254(b)(1)(B) because there is an absence

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of available State corrective process or circumstances exist that
render such process ineffective to protect the rights of the
applicant. See Henderson v. Frank, 155 F. 3d 159, 164 (3d Cir.
1998); Lambert v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997);
Toulson v. Beyer, 987 F.2d 984 (3d Cir. 1993). Exhaustion requires
a petitioner challenging a New Jersey conviction under § 2254 to
have fairly presented each federal ground raised in the petition to
all three levels of New Jersey courts. See O’Sullivan v. Boerckel,
526 U.S. 838 (1999); Rose v. Lundy, 455 U.S. 509 (1982).

14.

A copy of this Memorandum Opinion and Order shall be

filed in the instant matter with a notation reading FOR
INFORMATIONAL PURPOSES ONLY. This Memorandum Opinion and Order
shall then be filed under the new docket number.
THEREFORE IT IS this 16th day of July, 2015,
ORDERED that the Clerk of the Court shall open a new docket
number for proceedings pursuant to 28 U.S.C. § 2554 naming
Maritza Soto as the Petitioner and EMCF Administrator Valerie
Arthur as Respondent, and enter Plaintiff’s letter, Docket Entry
6, as the first entry, followed by this Memorandum Opinion and
Order; and it is further
ORDERED that the Clerk of the Court shall administratively
terminate the new case, without filing the petition or assessing
a filing fee; Plaintiff is informed that administrative
termination is not a “dismissal” for purposes of the statute of

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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 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 to
Plaintiff a blank in forma pauperis application for habeas
cases, DNJ-Pro Se-007-B-(Rev. 09/09); and it is further
ORDERED that the Clerk of the Court shall forward to
Plaintiff a blank habeas petition form – AO241 (modified): DNJHabeas-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
Plaintiff’s claims are or are not duly exhausted; and it is
further
ORDERED that if Plaintiff wishes to reopen this case, she
shall so notify the Court, in writing addressed to the Clerk of
the Court, Clarkson S. Fisher Building and U.S. Courthouse, 402
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East State Street, Trenton, New Jersey, 08608, within 45 days of
the date of entry of this Order. Plaintiff’s writing shall
include a complete, signed habeas petition on the appropriate
form, as well as either the $5.00 filing fee or completed in
forma pauperis application; and it is further
ORDERED that upon receipt of a writing from Plaintiff
stating that she wishes to reopen this case, and a complete,
signed petition accompanied by either the $5.00 filing fee or
completed in forma pauperis application, the Clerk of Court will
be directed to reopen this case; and it is further
ORDERED that this Memorandum Opinion and Order shall be
filed in a new docket entry under 3:98-cv-2574 (AET) with a
notation reading “FOR INFORMATIONAL PURPOSES ONLY”; and it is
finally
ORDERED that the Clerk shall serve a copy of this Opinion
and Order on Plaintiff by regular mail at the Edna Mahan
Correctional Facility.

/s/ Anne E. Thompson
ANNE E. THOMPSON
U.S. District Judge

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