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

Filing 2

MEMORANDUM AND ORDER that within 45 days of the entry of this Memorandum and Order, Petitioner shall (1) request a stay under Rhines pending resolution of his second post-conviction relief proceeding in the state courts, (2) withdraw the unexhausted claims and proceed only on the exhausted claims, or (3) have the Court dismiss the Petition without prejudice as a mixed petition. The Clerk of the Court shall serve a copy of this 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.01-2014). Signed by Judge Freda L. Wolfson on 11/19/2018. (mps)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ANTOINE DENNIS,
Petitioner,
v.
STEPHEN JOHNSON et al.,
Respondents.

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Civil No. 18-9408 (FLW)

MEMORANDUM AND ORDER

Petitioner pro se, Antoine Dennis (“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.) Upon a review of the Petition, the Court
notes that Petitioner admits that his seventh and eighth grounds for relief are unexhausted, and he
explains that he is presently pursuing a second petition for post-conviction relief in the New
Jersey state courts. (See id. ¶¶ 13(b) & 15.) Thus, the Petition is a “mixed petition,” containing
both exhausted and unexhausted claims; the Court may not adjudicate a mixed petition. Rhines
v. Weber, 544 U.S. 269, 273 (2005). The Court therefore directs Petitioner to choose one of the
following options: (1) request a stay of the Petition pending resolution of his second state postconviction relief proceeding, pursuant to Rhines v. Weber, 544 U.S. 269 (2005); (2) delete the
unexhausted claims and proceed only on his exhausted claims; or (3) have the Court dismiss the
Petition without prejudice as a mixed petition. Petitioner shall make his choice in writing within
45 days of the date of the entry of this Memorandum and Order. If Petitioner fails to respond to
this Memorandum and Order, the Court will dismiss the Petition without prejudice as a mixed
petition.

The Court further notes that the form Petition filed by Petitioner lacks the required notice
under Mason v. Myers, 208 F.3d 414 (3d Cir. 2000). Consequently, the Court will now provide
the Mason notice to Petitioner. Before a District Court may rule on a § 2254 petition from a pro
se petitioner, it must notify the petitioner that he may either (1) have his petition ruled on as
filed, or (2) withdraw the petition and file one all-inclusive § 2254 petition “within the one-year
statutory period.” Mason, 208 F.3d at 418 (internal quotation marks omitted); see also United
States v. Miller, 197 F.3d 644, 652 (3d Cir. 1999) (same for a § 2255 petition). This notice is
required “out of a sense of fairness,” because the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) has a restrictive effect on successive habeas petitions. Mason, 208 F.3d
at 418; see also Holden v. Mechling, 133 F. App'x 21, 22 (3d Cir. 2005).
Thus, Petitioner shall also confirm to the Court that the active, pending Petition is his
one, all-inclusive petition. Alternatively, he may notify the Court that he wishes to withdraw his
Petition and submit one amended, all-inclusive § 2254 Petition. Petitioner shall specifically
address this issue in his response to the Court, to be filed within 45 days. If Petitioner does not
respond to the Court concerning this issue, the Court will construe this as an indication that the
active Petition is his one, all-inclusive petition.
Accordingly, IT IS, this 19th day of November 2018
ORDERED that within 45 days of the entry of this Memorandum and Order, Petitioner
shall (1) request a stay under Rhines pending resolution of his second post-conviction relief
proceeding in the state courts, (2) withdraw the unexhausted claims and proceed only on the
exhausted claims, or (3) have the Court dismiss the Petition without prejudice as a mixed
petition. 1 To the extent Petitioner seeks a stay under Rhines, he shall show cause for the failure
1

If Petitioner dismissal of the Petition without prejudice, he may lose his opportunity to bring
any habeas claims, as they could be untimely under AEDPA.
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to exhaust his claims, explain the potential merit of the claims he seeks to exhaust in state court,
and show that he has not engaged in dilatory tactics; and it is further
ORDERED that Petitioner shall also confirm to the Court within 45 days of the entry of
this Memorandum and Order whether he wishes to have his Petition ruled on as filed or whether
he wishes to withdraw his Petition and submit one amended, all-inclusive § 2254 petition; and it
is further
ORDERED that to the extent Petitioner wishes to delete his unexhausted claims or
otherwise to submit an amended, all-inclusive petition, he must submit the amended petition
within 45 days of the date of the entry of this Memorandum and Order; and it is further
ORDERED that, if Petitioner fails to respond to this Memorandum and Order within 45
days of its entry, this Court will consider Docket Entry Number 1 as Petitioner’s one and only
all-inclusive § 2254 petition and will dismiss it as a mixed petition; 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, 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.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.

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

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