BACON-VAUGHTERS v. JOHNSON et al

Filing 4

MEMORANDUM ORDER advising petitioner of rights under US V. MASON and directing petitioner to advise the Court in 45 days; granting 2 Petitioner's Motion for leave to file a substantially equivalent petition for a writ of habeas corpus to the extent it simply asks the Court to accept the Petition despite superficial defects; denying without prejudice 3 Motion to Stay; directing the Clerk to send certain forms. Signed by Judge Freda L. Wolfson on 12/4/2018. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
KENNETH BACON-VAUGHTERS,
:
:
Petitioner,
:
Civ. No. 18-9034 (FLW)
:
v.
:
:
STEVEN JOHNSON et al.,
:
MEMORANDUM AND ORDER
:
Respondents.
:
_________________________________________ :

Petitioner pro se, Kenneth Bacon-Vaughters (“Petitioner”), a state prisoner presently
incarcerated at New Jersey State Prison, in Trenton, New Jersey, seeks to bring a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254. (See ECF No. 1.) Presently before the Court are
a motion by Petitioner “for leave to file a substantially equivalent petition for a writ of habeas
corpus” and a motion for a protective stay of this proceeding. (ECF Nos. 2 & 3.)
It appears that Petitioner employed a form petition intended to raise § 2254 habeas claims
in the United States District Court for the Northern District of California. Otherwise, the form
petition substantially conforms to the requirements of applicable rules in this Court. Thus, to the
extent that Petitioner’s motion for leave to file a substantially equivalent petition for writ of
habeas corpus is intended to convince the Court to excuse this superficial defect of the Petition,
the motion is granted.
Petitioner’s second motion seeks an order granting a stay of this proceeding in abeyance
to permit him to exhaust a claim before the state courts that his sentence was “illegal.” (ECF No.
3.) When presented with a petition that contains both exhausted and unexhausted claims—a socalled mixed petition—a court may grant a protective stay to permit the petitioner to exhaust the
unexhausted claims without letting the limitations period expire on the exhausted claims. See

Rhines v. Weber, 544 U.S. 269, 275–78 (2005). The petition in this case is not a mixed petition,
as it does not include the illegal-sentence claims that Petitioner now seeks to exhaust in state
court. Accordingly, a stay cannot be granted, and the motion is denied.
The Court, however, construes Petitioner’s motion as notice that his petition may not
include every ground upon which he seeks habeas relief. Because the Anti-Terrorism and
Effective Death Penalty Act of 1996 (“AEDPA”) generally bars the filing of a second or
successive petition for writ of habeas corpus, 28 U.S.C. 2244, “it is essential that habeas
petitioners include in their first petition all potential claims for which they might desire to seek
review and relief,” Mason v. Myers, 208 F.3d 414, 417 (3d Cir. 2000). Accordingly, the Court
will give Petitioner 45 days to notify the Court as to whether he (1) wishes to have his Petition
ruled on as filed or (2) wishes to withdraw his Petition and submit one all-inclusive § 2254
Petition. If Petitioner wishes to submit an amended petition, he shall do so within 45 days of the
date of this Court’s Order.
If Petitioner files an amended petition that includes claims that are unexhausted before
the state courts, but that Petitioner intends to exhaust, he may again file a motion for a protective
stay. If he elects to do so, Petitioner should note that the Court, in considering a motion for a
stay, must examine whether good cause exists for the petitioner’s failure to exhaust all claims in
state court, whether the unexhausted claims are potentially meritorious, and whether the
petitioner is employing the litigation simply as means of delay. See Rhines, 544 U.S. at 277;
Gerber v. Varano, 512 F. App’x 131, 135 (3d Cir. 2013).

Accordingly, IT IS, on this 4th day of December 2018,

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ORDERED that Petitioner’s motion for leave to file a substantially equivalent petition for
a writ of habeas corpus, (ECF No. 2), to the extent it simply asks the Court to accept the Petition
despite superficial defects, is GRANTED; and it is further
ORDERED that Petitioner’s motion to stay this proceeding, (ECF No. 3), is DENIED
without prejudice to his filing of another motion for a stay if he subsequently files a mixed
petition; and it is further
ORDERED that Petitioner shall notify the Court within 45 days of the date of this Order
whether he wishes to have his Petition ruled on as filed or whether he wishes to withdraw his
Petition and submit one all-inclusive § 2254 petition; and it is further
ORDERED that to the extent Petitioner wishes to withdraw his original Petition and
submit one all-inclusive amended petition, he must submit the amended petition within 45 days
of the date of this Court’s Order; and it is further
ORDERED that, if Petitioner fails to submit for filing an amended § 2254 petition within
45 days of the date of the entry of this Order, then this Court will consider Docket Entry Number
1 as Petitioner’s one and only all-inclusive § 2254 petition; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Memorandum and Order
on Petitioner by regular U.S. mail, accompanied by a blank Petition for Relief from a Conviction
or Sentence by a Person in State Custody, Form AO 241 (modified):DNJ-Habeas-008(Rev.012014); 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.
.

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

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