United States District Court, D. New Jersey
MEMORANDUM AND ORDER
FREDA
L. WOLFSON U.S. Chief District Judge.
Petitioner,
Mozett Petway (“Petitioner”), is a prisoner
serving out a sentence imposed by the courts of the State of
Maryland at New Jersey State Prison, in Trenton, New Jersey,
pursuant to the Interstate Corrections Compact. Petitioner
seeks to proceed with a petition for writ of habeas corpus
under 28 U.S.C. § 2241. (See Pet., ECF No. 1.)
A habeas petition must include either a $5.00 filing fee or
an application to proceed in forma pauperis. 28
U.S.C. §§ 1914(a), 1915(a); Rules Governing §
2254 Cases, Rule 2, 28 U.S.C.A. foll. § 2254 (applied to
this case under Rule 1 of the Rules Governing § 2254
Cases). Although a cover letter submitted with the Petition
indicated that a check for the filing fee was included, the
Court has not received any filing fee from Petitioner. Nor
has it received an application to proceed in forma
pauperis. Thus, this case is administratively
terminated. Petitioner shall be given an opportunity to
reopen this action should he so choose.
The
Court further notes that, as Petitioner is challenging the
execution of a sentence imposed by a state court, his habeas
Petition must be construed as seeking relief under 28 U.S.C.
§ 2254, not § 2241.[1] See Coady v. Vaughn, 251
F.3d 480, 484-85 (3d Cir. 2001). There is a significant
difference, however, between petitions filed under §
2241 and those filed under § 2254, namely, that a
party's ability to bring more than one petition seeking
relief under § 2254 is strictly limited by the
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Because of AEDPA's restrictions on
successive § 2254 petitions, before a District Court may
rule on a § 2254 petition from a pro se
petitioner, it must first ensure that the pro se
petitioner has notice that he may either (1) have his
petition ruled on as filed, or (2) withdraw the petition and
file one all-inclusive § 2254 petition “within the
one-year statutory period.” Mason v. Myers,
208 F.3d 414, 418 (3d Cir. 2000) (internal quotation marks
omitted). Consequently, the Court will now provide the
Mason notice to Petitioner. Within 45 days,
Petitioner shall notify the Court as to whether he (1) wishes
to have his Petition ruled on as filed or (2) wishes to
withdraw his Petition and submit one all-inclusive §
2254 Petition. If Petitioner wishes to proceed under an
amended petition, he shall submit the amended petition along
with his request to reopen the case.
Therefore,
IT IS, on this 12th day of June 2019, ORDERED that
the Clerk of the Court shall ADMINISTRATIVELY TERMINATE this
case; and it is further
ORDERED
that, if Petitioner wishes to reopen this case, he shall,
within 45 days of the entry of this order, submit a written
request to reopen accompanied by either the $5.00 filing fee
or a complete application to proceed in forma
pauperis; and it is further
ORDERED
that, if Petitioner notifies the Court that he seeks to
reopen this case, he shall concurrently notify the Court
whether he wishes to have his Petition ruled on as filed or
whether he wishes to withdraw his Petition and submit one
all-inclusive § 2254 petition; and it is further
ORDERED
that to the extent Petitioner wishes to withdraw his original
Petition and submit one all-inclusive amended petition, he
must submit the amended petition with his request to reopen
the case; and it is further
ORDERED
that, if Petitioner seeks to reopen this case but fails to
make clear whether he desires to proceed on his original
petition or to submit an amended § 2254 petition, then
this Court will consider Docket Entry Number 1 as
Petitioner's one and only all-inclusive § 2254
petition; and it is further
ORDERED
that the Clerk shall serve upon Petitioner by regular U.S.
mail (1) a copy of this Memorandum and Order, (2) a blank
form Application to Proceed in Forma Pauperis in a
Habeas Corpus Case, Form DNJ-ProSe-007-B-(Rev. 09/09), and
(3) a blank Petition for Relief from a Conviction or Sentence
by a Person in State Custody, Form AO 241
(modified):DNJ-Habeas-008(Rev.01-2014); and it is further
ORDERED
that the Clerk's service of the blank habeas petition
form shall not be construed as this Court's finding that
the original petition is or is not timely or that
Petitioner's claims are or are not duly exhausted.
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Notes:
[1] I further note that, insofar as
Petitioner seems to seek relief that may only be granted by
the Maryland Department of Corrections, namely, a different
application by that governmental entity of his work credits,
some officer with the authority to actually implement such
application may need to be ...