JONES v. UNITED STATES OF AMERICA
MEMORANDUM AND ORDER that Petitioner's 2 Motion for Pro Bono Counsel is denied without prejudice. The Clerk shall administratively terminate this case. The Clerk shall forward Petitioner a blank form for a Motion under 28 U.S.C. § 2255 A 0243 (modified): DNJ-Habeas-004 (Rev. 01-2014). If Petitioner wishes to reopen the case he shall notify the Court within 30 days of the date of entry of this Memorandum and Order. The Clerk shall serve a copy of this Order upon Petitioner by regular mail. Signed by Judge Peter G. Sheridan on 9/7/2017. (mps)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-6777 (PGS)
MEMORANDUM AND ORDER
UNITED STATES OF AMERICA,
Pro se petitioner Lee Jones, a prisoner confined at FCI Cumberland in Cumberland,
Maryland, seeks to file a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C.
2255. Local Civil Rule 81.2 provides:
Unless prepared by counsel,. motions under 28 U.S.C. §2255 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. 8 1.2(a). Petitioner did not use the habeas form supplied by the clerk for
§ 2255 motions,
i.e., A0243 (modified): DNJ-Habeas-004 (Rev. 01-2014). The form he used does not include a
declaration that the motion contains all the grounds for relief that he is raising, and that he
understands the failure to set forth all grounds may bar him from presenting additional grounds at
a later date.
Petitioner also filed a motion for pro bono counsel. ECF No. 2. However, convicts do not
have a constitutional right to counsel in post-conviction proceedings. Coleman v. Thompson, 501
U.S. 722, 752 (1991). To determine whether this Court should appoint counsel, it “must first
decide if petitioner has presented a nonfrivolous claim and if the appointment of counsel will
benefit the petitioner and the court. Factors influencing a court’s decision include the complexity
of the factual and legal issues in the case, as well as the pro se petitioner’s ability to investigate
facts and present claims.” Barkley v. Ortiz. No. 01-4530, 2017 WL 1536215, at *2 (D.N.J. Apr.
26, 2017) (quoting Reese v. Fulcorner, 946 F.2d 247, 263-64 (3d Cir. 1991)). As such, at this
juncture of the proceeding, the Court denies the motion as premature; the Court will decide if
counsel would be required after a full review of the record in the criminal matter, provided that
Petitioner files an amended
§ 2255 motion on the proper form.
IT IS theretbre on this
ORDERED that Petitioner’s motion for pro bono counsel, ECF No. 2, is hereby DENIED
WITHOUT PREJUDICE; it is further
ORDERED that the Clerk 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
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. Sher[fs 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 shall forward Petitioner a blank form for a Motion Under 28
A0243 (modified): DNJ-Habeas-004 (Rev. 01-2014); it is further
ORDERED that the Clerk’s service of the blank section 2255 form shall not be construed
as this Court’s finding that this Motion is or is not timely, or that the 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
writing, within 30 days of the date of entry of this memorandum and order, and his writing shall
include a complete, signed
§ 2255 motion on the appropriate form; it is further
ORDERED that upon receipt of a writing from Petitioner stating that he wishes to reopen
this case, and a complete, signed motion, the Clerk will be directed to reopen this case; and it is
ORDERED that the Clerk shall serve a copy of this Order upon Petitioner by regular mail.
Peter G. Sheridan
United States District Judge
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