LITTLE v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY et al

Filing 16

MEMORANDUM AND ORDER that Respondents shall serve upon Petitioner a copy of their Response to the Petition within seven (7) days of the date this Memorandum and Order is filed. Petitioner may file and serve a reply to the Response within forty-five ( 45) days after its service, see Rule 5(e) of Rules Governing § 2254 Cases. Petitioner's 15 Application for Release from Custody Pending Review of Petitioners Writ of Habeas Corpus Proceeding is denied. The Clerk of the Court shall serve a copy of this Order on Petitioner by regular U.S. mail. Signed by Judge Freda L. Wolfson on 4/1/2019. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
CALVIN LITTLE,
:
:
Petitioner,
:
Civ. No. 17-4498 (FLW)
:
v.
:
:
GEORGE ROBINSON et al.,
:
MEMORANDUM AND ORDER
:
Respondents.
:
_________________________________________ :

Petitioner, Calvin Little (“Little” or “Petitioner”), is a state prisoner proceeding pro se
with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Pet., ECF No. 1.) On
October 10, 2017, as the Petition lacked the required notice under Mason v. Myers, 208 F.3d 414
(3d Cir. 2000), 1 the Court ordered Little to notify the Court within 45 days whether he wished to
have his Petition ruled on as filed or wished to withdraw his Petition and submit one all-inclusive
Petition. (ECF No. 3.) Little subsequently indicated that he wished to have the Petition ruled on
as filed. (ECF No. 4.) On November 20, 2017, the Court ordered Respondents to serve an
answer the petition or move to dismiss on timeliness grounds within 45 days, and it permitted
Little 45 days to file a reply to the answer. (ECF No. 5.) After the Court granted several
requests by Respondents to extend their time to answer, Respondents filed a timely Response to
the Petition on August 29, 2018. (See ECF Nos. 7–13.)

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Mason requires District Courts to give pro se § 2254 habeas petitioners notice that the AntiTerrorism and Effective Death Penalty Act of 1996 has a restrictive effect on second or
successive habeas petitions and, thus, further requires courts to give petitioners the choice of
having their petitions ruled on as filed or withdrawing their petitions and filing all-inclusive §
2254 petitions. See Mason, 208 F.3d at 418.

Petitioner subsequently sent a letter to the Court indicating that he had received no
answer from the Respondents and requesting an order compelling Respondents to answer. (ECF
No. 14.) It appears that, although Respondents filed their Response on the case’s docket, they
did not serve the Response on Petitioner.
Local Civil Rule requires, in relevant part, that respondents in a habeas case “file and
serve [their] answer to the petition or motion not later than 45 days from the date on which an
order directing such response is filed with the Clerk, unless an extension is granted for good
cause shown.” L. Civ. R. 81.2(d) (emphasis added). The Affidavit of Service accompanying the
Response to the Petitioner indicates that it was “served on Calvin Little . . . via the United States
District Court E-Filing system.” (ECF No. 13-29.) Although Local Civil Rule 5.2 permits
service by electronic means, such service is proper only if it is “in accordance with procedures
promulgated by the Court.” L. Civ. R. 5.2. The Court’s Electronic Case Filing Policies and
Procedures, however, permit electronic service only on ECF Filing Users. Specifically, it states,
A Non ECF Filer is entitled to receive a paper copy of any
electronically filed document from the party making such filing.
Service of such paper copy must be made according to the Federal
Rules of Civil Procedure, the Federal Rules of Criminal Procedure,
the Local Civil or Criminal Rules of this Court.
Electronic Case Filing Policies and Procedures (as amended Apr. 3, 2014) § 14(b)(2),
https://www.njd.uscourts.gov/sites/njd/files/PoliciesandProcedures2014.pdf [hereinafter
“Policies & Procedures”]. Little is not an electronic filer and, under the applicable polices, is
ineligible to receive filed documents electronically. Policies & Procedures § 4 (“A Pro Se party
who is not incarcerated may request to receive filed documents electronically . . . .”).
Accordingly, Respondents, having obtained multiple extensions to file their Answer, have not

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properly served their Response upon Little. Their conduct demonstrates a pattern of delay that
this Court cannot accept, and therefore, the Court now orders them to do so promptly.
The Court further notes that Little has filed an “Application for Release from Custody
Pending Review of Petitioner’s Writ of Habeas Corpus Proceeding.” (ECF No. 15.) Little cites
to Respondents’ “unreasonable delays” in answering his Petition, and seeks release on his own
recognizance under “Rule 23 governing habeas corpus proceedings.” (Id.)
The Court construes that Little seeks to invoke Federal Rule of Appellate Procedure 23,
titled “Custody or Release of a Prisoner in a Habeas Corpus Proceeding.” 2 Fed. R. App. P. 23.
That rule does not apply in these circumstances, however. It governs release on bail pending
appellate review of a court’s final order resolving a habeas petition, not, as is the case here,
release on bail pending the District Court’s review of the petition. See id.; Landano v. Rafferty,
970 F.2d 1230, 1238–39 (3d Cir. 1992). A petitioner may apply for bail pending the District
Court’s review of a habeas petition, but release on bail may be granted only upon a showing of
“extraordinary circumstances.” Landano, 970 F.2d at 1239; Lucas v. Hadden, 790 F.2d 365,
367–68 (3d Cir. 1986); see also In re Souels, 688 F. App’x 134, 135–36 (3d Cir. 2017). Little
has not identified any circumstances that could be considered extraordinary, and his application
for release is therefore denied.
Accordingly, IT IS, on this 1st day of April 2019,
ORDERED that Respondents shall serve upon Petitioner a copy of their Response to
the Petition within seven (7) days of the date this Memorandum and Order is filed; and it is
further

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The Court so assumes that this is the rule Little means to invoke as Federal Rule of Civil
Procedure 23 pertains to class actions.
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ORDERED that Petitioner may file and serve a reply to the Response within forty-five
(45) days after its service, see Rule 5(e) of Rules Governing § 2254 Cases; and it is further
ORDERED that Petitioner’s Application for Release from Custody Pending Review of
Petitioner’s Writ of Habeas Corpus Proceeding, (ECF No. 15), is DENIED; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this order on Petitioner by
regular U.S. mail.

/s/ Freda L. Wolfson
FREDA L. WOLFSON
United States District Judge

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