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Joselito Tineo v. Larry Glover

February 10, 2011

JOSELITO TINEO, PETITIONER,
v.
LARRY GLOVER, ET AL., RESPONDENTS.



The opinion of the court was delivered by: Hochberg, District Judge

NOT FOR PUBLICATION

OPINION

Petitioner, Joselito Tineo, filed a petition for a writ of habeas corpus, pro se, pursuant to 28 U.S.C. § 2254. Petitioner was advised of his rights, pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000). Petitioner responded to the Mason order with a letter filed May 25, 2010. On July 27, 2010, Petitioner filed an application for counsel (docket entry 6).

This Court has considered Petitioner's response to the Mason order and his application for counsel. For the following reasons, Petitioner will be granted additional time to respond to the Mason order, and his application for counsel will be denied, without prejudice.

DISCUSSION

1. Mason Order

Petitioner filed an Amended Petition for habeas corpus on April 26, 2010 (docket entry 3). Pursuant to Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), this Court issued an Order to Petitioner advising that pursuant to United States law, prisoners challenging the legality of their detention pursuant to the judgment of a State court must marshal in one § 2254 Application all the arguments they have to collaterally attack the State judgment and, except in extremely limited circumstances, file this one all-inclusive Application within one year of the date on which the judgment of conviction becomes final by the conclusion of direct review or the expiration of the time for seeking such review. See 28 U.S.C. § 2244(d). This Court asked Petitioner how he wanted to proceed: either by having the pending § 2254 Application ruled upon as is, or withdrawing the pending § 2254 Application and filing one all-inclusive § 2254 Application subject to the one-year statute of limitations. See Docket entry 4.

Petitioner responded, in relevant part:

I was under the impression that I had to file a brief at a later date, the date to be set by the Court.

If I was not correct, please [accept] this correspondence as a request to file an all [inclusive] petition within the one year time limitation. As I was denied by the New Jersey Supreme Court for Certification [sic]. That would give me the time to file.

See Letter, Docket entry 5. It appears from a review of the letter that Petitioner is confused as to the Mason order.

This Court notes that the Rules Governing Section 2254 Cases in United States District Court ("§ 2254 Rules) do not require that Petitioner file a brief.*fn1 In general, this Court does not set briefing schedules in § 2254 cases; however, Petitioner may file a brief if he so chooses, which will be considered by the Court in deciding his case.

As Petitioner's response to the Mason order is unclear, the Court will allow him 30 days to respond, in writing, as to how he wishes to proceed, before this Court orders Respondents to answer the claims of the petition. Petitioner may elect to either proceed with his amended petition as filed, or may request to withdraw his amended petition, and file one all-inclusive petition subject to the statute of limitations. If Petitioner does not respond, this ...


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