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Leonard Crumbs v. Karen Balicki

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY


January 13, 2011

LEONARD CRUMBS, PETITIONER,
v.
KAREN BALICKI, E T A L . ,
RESPONDENTS.

The opinion of the court was delivered by: Faith S. Hochberg United States District Judge

ORDER

IT APPEARING THAT:

1. The Clerk of the Court received Petitioner's application for a writ of habeas corpus, executed pursuant to 28 U.S.C. § 2254 ("Petition"). See Docket Entry No. 1. The Petition arrived unaccompanied by Petitioner's filing fee or by his in forma pauperis application. See id.

2. While the Petition is rather lengthy, it is unclear from the face of the Petition whether the Petition is timely and if all Petitioner's challenges raised in the Petition were duly exhausted in all three levels of the state court.

IT IS on this 13th day of January, 2011,

ORDERED that the Clerk shall serve copies of the Petition and all documents docketed in this matter, as well as the instant Order, upon Respondents and upon the Attorney General of the State of New Jersey, by certified mail, return receipt requested, with all costs of service advanced by the United States; and it is further ORDERED that Respondents shall file, electronically, a LIMITED ANSWER to the Petition within 30 days of the entry of this Order. At the instant juncture, Respondents'Limited Answer shall address solely the issues of timeliness of the Petition and due exhaustion of all Petitioner's claims stated in the Petition; and it is further ORDERED that, in the event the information provided in the Limited Answer establishes that the Petition is timely, this Court takes an opportunity to notify Petitioner of the consequences of filing a § 2254 application under the Antiterrorism and Effective Death Penalty Act ("AEDPA") and, pursuant to the holding of Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), gives Petitioner an opportunity to file one all-inclusive § 2254 Application.*fn1 Petitioner, therefore, shall file with the Clerk, within thirty days from the date of entry of this Order, a letter or other written response signed by Petitioner advising the Court how Petitioner would like to proceed, i.e., if he wishes to have the Court rule on his Petition as is or if he wishes to withdraw the instant Petition and file, instead, a timely all-inclusive Petition;*fn2 and it is further ORDERED that, if Petitioner does not file, within 30 days of the entry of this Order, a signed response choosing one of the options detailed in footnote one, then the Court will rule on Petitioner's instant Petition as it is; and it is further ORDERED that, within thirty days from the date of entry of this Order, Petitioner shall either submit his filing fee of $5 or his duly executed in forma pauperis application;*fn3 and it is finally ORDERED that the Clerk shall serve a copy of this Order upon Petitioner by regular U.S. mail, together with a blank in forma pauperis form for prisoners seeking to bring a habeas action.

Gronolsky, 2009 U.S. App. LEXIS 22770, at *5 (3d Cir. Oct. 15, 2009) (citing Hall v. Stone, 170 F.3d 706, 707 (7th Cir. 1999)). If the application to proceed IFP is incomplete, the Court may enter an order denying the application without prejudice and administratively terminating the case; that outcome applies both to civil complaints and habeas petitions. The prisoner's repeated failure to prepay the filing fee or to submit a proper IFP application qualifies as failure to prosecute the prisoner's legal action and, therefore, warrants dismissal. See Hairston, 2009 U.S. App. LEXIS 22770 (affirming dismissal upon the prisoner's persistent refusal to submit a complete IFP application); see also Hernandez v. Martinez, 327 Fed. App'x 340 (3d Cir. 2009) (dismissed for failure to prosecute on the grounds that the prisoner neither prepaid his filing fee nor duly applied for the IFP status); Bridgeman v. Bureau of Prisons, 112 Fed. App'x 411 (6th Cir. 2004) (affirming dismissal of a habeas petition for failure to prosecute on the basis of the prisoner's failure to prepay the filing fee or to properly apply for the IFP status).


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