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Roche v. Ricci

October 15, 2010

RICHARD ROCHE, FELIX ROCHE AND ABDIEL F. AVILA PETITIONERS,
v.
MICHELLE RICCI, RESPONDENT.



The opinion of the court was delivered by: Noel L. Hillman United States District Judge

MEMORANDUM ORDER

This matter comes before the Court upon the Clerk's receipt of an application seeking habeas corpus relief ("Petition"), submitted pursuant to § 2254, and it appearing that:

1. The Petition names, as the petitioners in this action, three individuals: Richard Roche, Felix Roche and Abdiel Avila. See Docket Entry No. 1, at 1. The Petition, while asserting challenges to convictions of all three above-named individuals, is signed only by Richard Roche, not by Felix Roche or by Abdiel Avila. See id. at 5. Moreover, the Petition arrived accompanied only by in forma pauperis application of Richard Roche, and no in forma pauperis applications by Felix Roche and Abdiel Avila were included.*fn1

2. Since the Petition challenges three different convictions, i.e., the convictions of Richard Roche, Felix Roche and Abdiel Avila, the Petition violates Habeas Rule 2(e) that requires filing of a new and separate petition with regard to each separate determination as to each inmate's fact or term of confinement. Simply put, Richard Roche, Felix Roche and Abdiel Avila cannot file a joint petition challenging their individual convictions; rather, they must bring separate habeas actions, each challenging an individual conviction.

3. Since the Petition arrived accompanied by a duly executed in forma pauperis application of Richard Roche, this Court will grant in forma pauperis status to -- and will reserve the instant matter for -- Richard Roche, and will direct the Clerk to open two new matters, one for Felix Roche and one for Abdiel Avila, in order to enable Felix Roche and Abdiel Avila to bring their challenges in the event they so desire.*fn2 The Court, however, stresses, that in order for Felix Roche's habeas application and Abdiel Avila's habeas application, to be considered properly filed, each must submit: a) a letter asking the joint fees previously submitted be applied to their respective petitions or a proper in forma pauperis application consisting of the petitioner's affidavit of poverty and certified prison account statement for the six months preceding the filing, see 42 U.S.C. § 1914(a);*fn3 and (b) a separate habeas petition executed on either the pre-printed habeas petition form distributed by the Clerk or be drafted in accordance with the format prescribed by the Local Rules. See Habeas Rule 2(c).

4. The Court now turns to the § 2254 challenges of Richard Roche raised in the Docket Entry No. 1, for the purposes of which challenges this matter is reserved.

5. On April 24, 2008, petitioner named Richard Roche, having identification number "301406/135736," filed a § 2254 petition challenging his conviction and sentence. See Roche v. Ricci ("Roche-I"), 08-2073 (NLH) (D.N.J.). Since the first and last names, as well as the identification number, of petitioner Richard Roche in this action are the same, the Court concludes that the petitioner in Roche-I and petitioner Richard Roche in this matter is the same person (hereinafter "Roche").

6. During the Roche-I proceedings before this Court, Roche was duly advised of his Mason rights, and this Court made clear to him that a § 2254 habeas litigant is obligated to marshal all his habeas challenges to any particular determination in one, all inclusive petition. See id., Docket Entry No. 5.

7. Upon respondent's filing of her answer in Roche-I, this Court addressed Roche's 2254 challenges on the merits, dismissing the Roche-I petition. See id., Docket Entries Nos. 14 and 15. That decision was entered on July 16, 2009. See id. Consequently, the instant Petition represents a second/ successive § 2254 application by Roche.

8. This Court, is without jurisdiction to entertain Roche's second and successive § 2254 petition unless the United States Court of Appeals for the Third Circuit grants Roche leave to file such second and successive § 2254 petition.

9. In a typical scenario, this Court would construe Roche's instant Petition as an application to the Court of Appeals seeking leave to file a second § 2254 petition, and would direct the Clerk, accordingly, to forward Roche's instant § 2254 application to the Court of Appeals. However, since Roche's is currently seeking leave to file an out-of-time appeal with regard to this Court's determination made in Roche-I, the Court finds the forwarding the instant petition would not be in the interests of justice. Therefore, the Court will dismiss the application at hand for lack of jurisdiction without directing the Clerk to forward the instant application to the Court of Appeals.*fn4 Accordingly,

IT IS on this 15th day of October , 2010,

ORDERED that the § 2254 application docketed in this action as Docket Entry No. 1 is construed as an application filed solely by Richard Roche, and the Clerk shall terminate Felix Roche and Abdiel Avila as petitioners in this action; and it is further

ORDERED that Richard Roche's application to proceed in this matter in forma pauperis is ...


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