At his first trial, Pindale was convicted in Cumberland County of three
counts of first degree aggravated manslaughter and two counts of fourth
degree assault by auto that occurred on March 5, 1988, and sentenced to
three consecutive 20-year terms, with a 10-year period of parole
ineligibility on each aggravated manslaughter conviction, and two
18-month concurrent terms on the two assault by auto convictions. See New
Jersey v. Pindale, 249 N.J. Super. 266, 272 (App.Div. 1991). Pindale
appealed the convictions and sentence. (Pet. ¶ 9.) On February 28,
1991, the Appellate Division of the Superior Court of New Jersey affirmed
the convictions for fourth degree assault by auto but vacated the
sentences therefor, and reversed the convictions for aggravated
manslaughter. Pindale, 249 N.J. Super. at 286-90. The New Jersey Supreme
Court denied Pindale's Petition for Certification.
The prosecutor retried Pindale on three counts of aggravated
manslaughter and three counts of death by auto, and on January 13, 1992,
the jury found Pindale guilty on three counts of aggravated
manslaughter. (Tr. of Jan. 13, 1992, attachm. R17 to Answer.) See New
Jersey v. Pindale, 279 N.J. Super. 123, 124-26 (App.Div. 1995). The trial
judge sentenced Pindale to three consecutive 25-year terms, with a
10-year period of parole ineligibility on each. (Sentencing Tr. of Feb.
28, 1992, attachm. R18 to Answer) Pindale, 279 N.J. Super. at 124-26. On
Pindale's appeal, the Appellate Division affirmed the convictions,
vacated the sentences under the Due Process Clause because they exceeded
the sentences imposed after the first trial, and remanded for
resentencing. Id. at 128-30. The New Jersey Supreme Court denied
Pindale's Petition for Certification on June 7, 1995. (Order filed June
7, 1995, attachm. R6 to Answer.)
On March 16, 1995, the Superior Court of New Jersey, Cumberland
County, resentenced Pindale to three consecutive 20-year terms, with a
10-year period of parole ineligibility on each aggravated manslaughter
conviction. (Resentencing Tr. of March 16, 1995, attachm. R20 to Answer)
Pindale filed an application for post conviction relief which the trial
court denied on July 11, 1997, without an evidentiary hearing. (Pet.
¶ 11; attachm. R21 & attachm. R7 at Da-36 to Answer.) The trial
court denied Pindale's motion for reconsideration by Order filed
September 15, 1997. (Order filed Sept. 15, 1997, attachm. R7 at Da-12 to
Answer.) By Opinion filed January 21, 2000, the Appellate Division
affirmed denial of the motion for reconsideration. (New Jersey v.
Pindale, A-4537-97T4, slip op. (Superior Ct. of New Jersey, App. Div.
Jan. 21, 2000), attachm. R9 to Answer) On April 3, 2001, the New Jersey
Supreme Court denied Pindale's Petition for Certification. New Jersey v.
Pindale, 168 N.J. 290 (2001) (table) (attachm. R12 to Answer.)
On March 15, 2002, the Clerk of this Court accepted for filing the
instant Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254.
By Order entered April 1, 2002, the Court advised Pindale of the
consequences of filing a § 2254 Petition under the Antiterrorism and
Effective Death Penalty Act, and gave him an opportunity to file one
all-inclusive § 2254 petition. (Order entered April 1, 2002.) By
response dated April 2, 2002, Pindale asked the Court to rule on his
Petition "as is." (Response entered April 4, 2002.) By Order filed April
8, 2002, the Court ordered Respondents to file an answer accompanied by
certified copies of the State court record. (Order entered April 10,
By letter dated May 30, 2002, Pindale informed Deputy Attorney General
K. Danielson that, although he received Respondents' Answer on May
28, 2002, he did not receive the exhibits referred to throughout the
answer. In the letter, Pindale asked Ms. Danielson to provide a copy of
the 28 exhibits referred to in the Answer. On June 4, 2002, DAG Danielson
informed Pindale by letter that she was not in a position to comply with
his request because there was nothing in the Order filed April 8, 2002,
requiring the State to provide a copy of the record to Petitioner. Having
received copies of these letters, the Court ordered Respondents to serve
the documents filed with the Answer on or before June 26, 2002. (Order
entered June 11, 2002.)
On June 20, 2002, Respondents filed a Motion for reconsideration and to
stay and vacate the Order entered June 11, 2002. On June 24, 2002, the
Court stayed that Order pending disposition of the Respondents' Motion.
On July 19, 2002, Petitioner filed a response opposing Respondents'
The State seeks an order vacating the Order entered June 11, 2002,
directing it to serve on Petitioner the documents it attached to and
filed with the Answer. First, the State contends that service of the
documents filed with its Answer is not necessary and should not be
required because Pindale already has them. This assertion is evidently
inaccurate and therefore could not provide support for Respondents'
failure to serve the documents. Pindale states in his response to the
State's motion that he does not have 27 of the 28 documents filed with
the Answer. (Petitioner's Response filed July 19, 2002.)
The Court's Order requiring service of the documents filed with the
Answer accords with Rule 5 of the Rules Governing Section 2254 Cases
("Habeas Rule 5") which sets forth the requirements for an answer in a
§ 2254 case. Habeas Rule 5 expressly requires a respondent to file an
answer and to attach to and file with the answer certain documents from
the underlying state criminal case. Habeas Rule 5, entitled "Answer;
Contents," provides in relevant part:
The answer shall respond to the allegations of the
petition. In addition it shall state whether the
petitioner has exhausted his state remedies. . . . The
answer shall indicate what transcripts . . . are
available, when they can be furnished, and also what
proceedings have been recorded and not transcribed.
There shall be attached to the answer such portions of
the transcripts as the answering party deems relevant.
The court on its own motion or upon request of the
petitioner may order that further portions of the
existing transcripts be furnished or that certain
portions of the non-transcribed proceedings be
transcribed and furnished. . . . If the petitioner
appealed from the judgment of conviction or from an
adverse judgment or order in a post-conviction
proceeding, a copy of the petitioner's brief on appeal
and of the opinion of the appellate court, if any, shall
also be filed by the respondent with the answer.
Rule 5 of the Rules Governing Section 2254 Cases.
Habeas Rule 5 does not on its face require service of the answer or
service of the documents attached to the answer but the Advisory
Committee's Note states that the rule "necessarily implies" service.
"Rule 5 does not indicate who the answer is to be served upon, but it
necessarily implies that it will be mailed to the petitioner (or to his
attorney if he has one)." Advisory Committee's 1976 Notes on Rule 5 of
Rules Governing Section 2254 Cases
in the United States District Courts.
As the Supreme Court recently observed, "[i]n the absence of a clear
legislative mandate, the advisory Committee Notes provide a reliable
source of insight into the meaning of a rule." United States v. Vonn, 122
S.Ct. 1043, 1049 n. 6 (2002); see also Schiavone v. Fortune, 477 U.S. 21,
31 (1986). Commentators agree that Habeas Rule 5 requires the government
to serve documents attached to and filed with the answer on the
petitioner or her attorney, if she has one.*fn3 Moreover, as this case
illustrates, failure to serve the documents attached to the answer
disadvantages petitioner's ability to rebut the arguments raised in the
answer.*fn4 The Court accordingly concludes that Habeas Rule 5 required
Respondents to serve the Answer and the documents attached to and filed
with the Answer on Pindale.
Even if Habeas Rule 5 did not require service of the documents, Rules
5(a) and 12(a) of the Federal Rules of Civil Procedure require service of
an answer and service of papers filed with the court, and the Federal
Rules of Civil Procedure apply to § 2254 cases through Habeas
Rule 11. Habeas Rule 11 provides: "The Federal Rules of Civil Procedure, to
the extent that they are not inconsistent with these rules, may be
applied, when appropriate, to petitions filed under these rules."
Rule 11 of the Rules Governing Section 2254 Cases. See Robinson v. Johnson,
313 F.3d 128, 134 (3d Cir. 2002) (affirmative defense rule, Fed.R.Civ.P.
8(c), applies to § 2254 cases); see also United States v. Thomas,
221 F.3d 430 (3d Cir. 2000) (relation-back rule, Fed.R.Civ.P. 15(c),
applies to § 2255 motions).
Rule 12(a) of the Federal Rules of Civil Procedure, captioned "When
Presented," requires service of an answer within specified time limits.
See Fed.R.Civ.P. 12(a)(1). Rule 5 of the Federal Rules of Civil Procedure
generally requires service of papers filed with the court on all parties
not in default. See Fed.R.Civ.P. 5(a). Entitled "Service: When required,"
Fed.R.Civ.P. 5(a) provides in relevant part:
Except as otherwise provided in these rules, every
pleading subsequent to the original complaint unless the
court otherwise orders because of numerous defendants,
every paper relating to discovery required to be served
upon a party unless the court otherwise orders, every
written motion other than one which may be heard ex
parte, and every written notice, appearance, demand,
offer of judgment, designation of record on appeal, and
similar paper shall be served upon each of the parties.
No service need be made on parties in default for
failure to appear except that pleadings asserting new or
additional claims for relief against them shall be
served upon them in the manner provided for service of
summons in Rule 4.
Fed.R.Civ.P. 5(a). Rule 5(b), entitled "Making service," sets forth how
service of papers is effected after service of the complaint. See
Fed.R.Civ.P. 5(b)(2)(A) & (B).