MILLER v. GOVERNOR OF NEW JERSEY et al

Filing 2

MEMORANDUM AND ORDER that the Clerk of the Court shall Administratively Terminate this case. The Clerk of the Clerk shall forward to Petitioner a blank habeas petition form AO 241. 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. The Clerk shall also forward to Petitioner the form to be used by a Petitioner seeking to procee d in forma pauperis in a habeas case. If Petitioner wishes to reopen case, he shall notify the Court in writing within 30 days of the date of his receipt of this Memorandum and Order. The Clerk of the Court shall serve a copy of this Memorandum and Order upon Petitioner by regular U.S. mail. Signed by Judge Freda L. Wolfson on 4/6/2017. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

WOODROW MILLER, III,

Civil Action No. 17-0459 (FLW)

Petitioner,
v.

MEMORANDUM AND ORDER

GOVERNOR OF NEW JERSEY, et al.,
Respondents.

Pro se Petitioner Woodrow Miller, III, a prisoner confined at New Jersey State Prison,
seeks to bring a habeas petition challenging his state court conviction 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). The Court will therefore
administratively terminate this case at this time, and instruct the Clerk of the Court to send
Petitioner the correct form. Petitioner also failed to either submit the $5.00 filing fee or an
application to proceed in forma pauperis. If he wishes to proceed with this action, Petitioner
shall submit his signed Petition on the proper form within 30 days of his receipt of this Court’s
Order, and shall submit either the filing fee or a complete application to proceed in forma
pauperis.
THEREFORE, it is on this 6th day of April, 2017;

1

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 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 (3d 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 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 the Clerk of the Court shall also forward to Petitioner the form to be
used by a Petitioner seeking to proceed in forma pauperis in a habeas case – DNJ-Pro Se-007-B(Rev. 09/09); 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 Building & U.S. Courthouse,
402 East State Street, Trenton, NJ 08608, within 30 days of the date of his receipt of this
Memorandum and Order; Petitioner’s writing shall include a complete, signed habeas petition on

2

the appropriate form and either the filing fee or a complete application to proceed in forma
pauperis; 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/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge

3