GREEN v. ELLIS et al

Filing 2

MEMORANDUM and ORDER Administratively terminating this case; Ordering the Clerk to send an Affidavit of Poverty and Certification; Ordering that if Petitioner wishes to reopen this case, he shall notify the Court, in writing within 30 days of the d ate of entry of this Memorandum and Order; Petitioner's writing shall include either: (1) a complete in forma pauperis application, as required by Local Civil Rule 81.2(b ), or (2) the $5 filing fee. Signed by Judge Michael A. Shipp on 11/3/2015. (eaj)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

VERNON GREEN,
Civil Action No. 15-7800 (MAS)
Petitioner,

v.

MEMORANDUM AND ORDER

CHARLES ELLIS, et al.,
Respondents.

Pro se Petitioner Vernon Green, a pre-trial detainee confined at the Mercer County
Correction Center in Trenton, New Jersey, seeks to file a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner seeks to proceed informa pauperis. Local Civil Rule
81.2 provides:
Whenever a Federal, State, or local prisoner ... seeks in forma pauperis status, the
prisoner shall also submit an affidavit setting forth information which establishes
that the prisoner is unable to pay the fees and costs of the proceedings and shall
further submit 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 prisoner's prison account during the sixmonth period prior to the date of the certification.
L.Civ.R. 8 l .2(b) (emphasis added). Petitioner's in forma pauperis application does not contain a
certification from an authorized officer of the institution; instead, Petitioner submitted a
certification signed by himself. This does not comply with Rule 81.2.
IT IS therefore on this

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ORDERED that the Clerk of the Court shall administratively terminate this case;

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
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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. Sheriff's Dep 't., 413 F. App'x 498, 502 (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 supply to Petitioner a blank form Affidavit of
Poverty and Certification (Habeas Corpus) - DNJ-Pro-Se-007-B-(Rev. 09/09); 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 either: (1) a complete in forma
pauperis application, as required by Local Civil Rule 81.2(b), or (2) the $5 filing fee; 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 Petitioner filed a§ 2254 petition, as a pre-trial detainee. However, §
2254 petitions can only challenge custody by a State "pursuant to the judgment of a State court
only 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). If Petitioner wishes to challenge his pre-trial detention by
the State, Petitioner should amend his petition by filing a § 2241 petition instead. The Court further
notes that a cursory review of the Petition suggests that the Court may not have jurisdiction to
review the issues raised by Petitioner in a § 2241 petition. Petitioner should raise these issues in
his state court proceedings instead.
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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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