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Cottrell Stewart v. Camden County Correctional Facility

July 19, 2012


The opinion of the court was delivered by: Simandle, Chief Judge:


Petitioner Cottrell Stewart, a prisoner confined at Camden County Correctional Facility in Camden, New Jersey, has filed a Petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction for violation of probation. According to the allegations of the Petition, the conviction was entered on April 20, 2012. This Petition is dated May 7, 2012, a mere 17 days after entry of the challenged judgment of conviction.

Petitioner alleges that he has appealed the conviction to the Superior Court of New Jersey, Appellate Division, but that there has been no decision as of the date the Petition was signed. Petitioner alleges the following grounds for relief:

(1) lack of subject matter jurisdiction, (2) selective enforcement, (3) ineffective assistance of counsel, and (4) violation of due process.

Petitioner has been provided the notice required by Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000), and has advised the Court that he wants his Petition ruled upon as filed. Petitioner has also filed a Motion [4] for appointment of counsel, which consists of a single-sentence request for assistance of counsel.

A. Filing Fee

The filing fee for a petition for writ of habeas corpus is $5.00. Pursuant to Local Civil Rule 54.3(a), the filing fee is required to be paid at the time the petition is presented for filing. Pursuant to Local Civil Rule 81.2(b), whenever a prisoner submits a petition for writ of habeas and seeks to proceed in forma pauperis, that petitioner must submit (a) an affidavit setting forth information which establishes that the petitioner is unable to pay the fees and costs of the proceedings, and (b) a certification signed by an authorized officer of the institution certifying (1) the amount presently on deposit in the prisoner's prison account and, (2) the greatest amount on deposit in the prisoners institutional account during the six-month period prior to the date of the certification. If the institutional account of the petitioner exceeds $200, the petitioner shall not be considered eligible to proceed in forma pauperis. Local Civil Rule 81.2(c).

Petitioner did not prepay the $5.00 filing fee for a habeas petition as required by Local Civil Rule 54.3(a), nor did Petitioner submit an application for leave to proceed in forma pauperis. Petitioner did provide the Court with a single-page incomplete and uncertified institutional account statement from Camden County Correctional Facility, dated April 25, 2012, and titled "RELEASE STATEMENT."

Accordingly, this action will be administratively terminated for failure to pay the filing fee. To the extent the inclusion of the incomplete institutional account statement could be construed as an application for leave to proceed in forma pauperis, such application will be denied without prejudice. Petitioner will be granted leave to apply to re-open by either prepaying the $5 filing fee or submitting a complete application for leave to proceed in forma pauperis, accompanied by the required certified institutional account statement.

In addition, the Petition as filed suffers from additional deficiencies as described below. Any application to re-open must be accompanied by a proposed amended petition that cures those deficiencies.

B. Failure to Name a Proper Respondent Among other things, 28 U.S.C. § 2242 requires the petition for a writ of habeas corpus to allege "the name of the person who has custody over [the petitioner]." See also 28 U.S.C. § 2243

("The writ, or order to show cause shall be directed to the person having custody of the person detained."). "[T]hese provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary." Wales v. Whitney, 114 U.S. 5674, 574 (1885) (emphasis added).

In accord with the statutory language and Wales' immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement - "core challenges" - the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official.

Rumsfeld v. Padilla, 542 U.S. 426, 434-436 (2004) (citations omitted).

Pursuant to 28 U.S.C. § 2241, United States district courts have power to issue writs of habeas corpus "within their respective jurisdictions." See also Zadvydas v. Davis, 533 U.S. 678, 688 (2001) ("§ 2241 habeas corpus proceedings remain available as a forum for statutory and constitutional challenges to post-removal-period detention"). Thus, the court issuing the writ must be able to exercise personal jurisdiction over the custodian of the petitioner. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95, 500 (1973).

The proviso that district courts may issue the writ only "within their respective jurisdictions" forms an important corollary to the immediate custodian rule in challenges to present physical custody under § 2241. Together they compose a simple rule that has been consistently applied in the lower courts, including in the context of military detentions: Whenever a § 2241 habeas petitioner seeks to challenge his present physical custody ...

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