Groulx v. Garman et al

Filing 7

ORDER : Petnr shall notify the court within 45 days of his decision regarding the filing of his 2254 petition;Signed by Honorable William J. Nealon on 8/10/17. (ep)

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM F. GROULX,
Petitioner
v.
MARK GARMEN, Superintendent,
Respondent

: CIVIL ACTION NO. 3:CV-17-1224
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: (Judge Nealon)
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ORDER

TO THE PETITIONER:
The court has received a filing from you which you have entitled a habeas
petition governed by 28 U.S.C. § 2254. The purpose of this notice is to inform you of
limitations upon your right to file another habeas petition in the future if your current
petition is considered by the court.
Under 28 U.S.C. § 2244(b)(3)(A), no second or successive habeas petition under
section 2254 is allowed unless there are exceptional circumstances and the petitioner
has obtained permission from the appropriate court of appeals. This means that if your
current 2254 habeas petition is considered on the merits and rejected, you no longer
have the right simply to file another 2254 petition in this court raising other grounds
for relief, even if you are attempting to raise grounds that you did not think of before

filing the current petition. Instead, you would have to move in the court of appeals for
a certificate allowing you to file that second 2254 petition. Further, the grounds upon
which you could rely to obtain that certificate, and proceed with a second 2254
petition, are limited to two extremely rare circumstances: (1) the factual predicate for
the new claim was not previously available to you by the exercise of due diligence; or
(2) there is a new rule of constitutional law that was previously unavailable to you and
made retroactive to cases on collateral review by the Supreme Court. Please consult 28
U.S.C. § 2244(b)(2) for further details. Because these grounds are so limited, in most
cases they will result in the denial of approval to file a second or successive 2254
habeas petition, thereby barring the litigation of grounds that had not been presented
in the first 2254 petition. Thus, you should carefully consider whether the current
habeas petition raises all grounds for relief from your conviction. If you think it may
not, you may want to withdraw it before the court considers it. The court will allow
you to do this now without prejudice to your right, after you have given the petition
more thought, to file another 2254 petition. If you do decide to withdraw your current
petition with the intent of filing a comprehensive 2254 petition in the future, you are
also advised that 28 U.S.C. § 2244(d) sets forth a one-year statute of limitations for
filing a 2254 petition. It also specifies periods of time that are not counted toward the
limitations period. You should consult this section for when the one-year period starts

to run. The limitations deadline may affect your decision to either stand on your current
petition or file a new, comprehensive one.
ACCORDINGLY, THIS 10th DAY OF AUGUST, 2017, IT IS HEREBY
ORDERED THAT:
1.

The Petitioner is granted leave to withdraw the current §
2254 petition without prejudice to filing another § 2254
petition raising all grounds for relief from his conviction.

2.

The Petitioner is granted 45 days from the date of this
order to notify the court of his decision. If he fails to do
so, the court will rule on the current § 2254 petition as
filed.

3.

If the one-year limitations period would expire during this
45-day period, the limitations period is tolled from the
date of this order until the petitioner’s notification is filed,
or until 45 days have elapsed, whichever is earliest. In
these circumstances, and if the petitioner decides to file an
all-inclusive § 2254 petition raising all grounds for relief,
the petitioner’s response mut also be accompanied by his
new § 2254 petition.

/s/ William J. Nealon
United States District Judge

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM F. GROULX,
Petitioner
v.
MARK GARMEN, Superintendent,
Respondent

: CIVIL ACTION NO. 3:CV-17-1224
:
: (Judge Nealon)
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NOTICE OF ELECTION
I,

, petitioner in the above-captioned action, have read the

Order of Court which accompanied this form notice. Pursuant to that order, I elect
to proceed in this action as follows:
I have labeled my petition as a petition for writ of habeas corpus under
28 U.S.C. § 2254. I choose to have the court rule on my petition as
filed. I understand that I may be forever barred from presenting in
federal court any claim not presented in this petition. I further
understand that by doing so I lose my ability to file a second or
successive petition absent certification by the Court of Appeals, and
that the potential for relief is further limited in a second or successive
petition.
I have labeled my petition as a petition for writ of habeas corpus under
28 U.S.C. § 2254. I choose to withdraw the petition so that I may file
one, all-inclusive petition under 28 U.S.C. § 2254 within the one-year
limit for filing such a petition.
YOUR ELECTION ON THIS FORM, AS WELL AS THE FAILURE TO MAKE
AN ELECTION, WILL BE BINDING ON YOU AS RELATES TO YOUR

LITIGATION IN FEDERAL COURT OF ANY CLAIM RELATED TO THE
CUSTODY YOU HAVE CHALLENGED. READ CAREFULLY THE ORDER
ACCOMPANYING THIS FORM NOTICE OF ELECTION.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on

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(Date)

(Signature of Petitioner)