NANCE v. STATE OF NEW JERSEY et al

Filing 2

MEMORANDUM ORDER that the Clerk of the Court shall administratively terminate this case, without filing the motion; 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, Clarkson S. Fisher Building & U.S. Courthouse, 402 East State Street, Room 2020, Trenton, New Jersey 08608, within 30 days of the date of entry of this Memorandum and Order. Signed by Judge Michael A. Shipp on 8/3/2015. (kas, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

WALLY NANCE,
Civil Action No. 15-5810 (MAS)
Petitioner,

MEMORANDUM AND ORDER

v.
STATE OF NEW JERSEY, et al.,
Respondents.

Prose Petitioner Wally Nance, an individual living in Trenton, New Jersey, seeks to file a
petition for writ of habeas corpus 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§ 2254 petitions,

i.e., A0241 (modified): DNJ-Habeas-008 (Rev. 01-2014); Petitioner used an outdated form
instead.
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IT IS therefore on this ___ _ _ day of _ __...k:£:;....::L_·.~....... .,....1&=.......;.-4.;__;r=---------' 2015;
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ORDERED that the Clerk of the Court shall administratively terminate this case, without
filing the motion; Petitioner is informed that administrative termination is not a "dismissal" for
purposes of the statute oflimitations, and that ifthe 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 (3d Cir. 2013) (distinguishing administrative terminations from
dismissals); Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 n.2 (3d Cir. 2013)
(describing prisoner mailbox rule generally); Dasilva v. Sheriffs Dep 't., 413 F. App'x 498, 502

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(3rd Cir. 2011) (per curiam) ("[The] statute of limitations is met when a [motion] is submitted to
the clerk before the statute runs .... "); it is further
ORDERED that the Clerk of the Court shall forward Petitioner a blank Petition Under 28
U.S.C. § 2254 for a Writ of Habeas Corpus - A0241 (modified): DNJ-Habeas-008 (Rev. 012014); it is further
ORDERED that the Clerk's service of the blank section 2254 form shall not be construed
as this Court's finding that the petition is or is not timely, or that Petitioner's claims are or are not
procedurally defaulted; 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, Clarkson S. Fisher Building & U.S. Courthouse, 402
East State Street, Room 2020, 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; 1 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 further

The Court notes that under § 2254, the Court is authorized only to entertain habeas petitions
from "a person in custody pursuant to the judgment of a State court ... on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §
2254(a) (emphasis added). Based on a cursory review of the Petition, Petitioner does not appear
to be in custody, nor has any judgment been issued against him. The Court further notes that
claims based on the collateral consequences of a conviction or prosecution, such as adverse effects
on employment, are more properly brought in a civil rights complaint under 42. U.S.C. § 1983.
See Preiser v. Rodriguez, 411 U.S. 475, 494 (if a plaintiff is '"attacking something other than the
fact or length of his confinement, and he is seeking something other than immediate or more
speedy release ... habeas corpus is not an appropriate or available federal remedy," and should
"be brought under the Civil Rights Act in federal court").

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ORDERED that the Clerk of the Court shall serve a copy of this Memorandum and Order
upon Petitioner by regular U.S. mail.

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