Cohen v. United States

Full title: EARL COHEN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Court: UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

Date published: Aug 5, 2015

Civil Action No. 15-5874 (MAS) (D.N.J. Aug. 5, 2015)

Opinion

Civil Action No. 15-5874 (MAS)

08-05-2015

EARL COHEN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Michael A. Shipp United States District Judge

MEMORANDUM AND ORDER

Pro se Petitioner Earl Cohen, a prisoner confined at the Federal Correctional Institution in Fort Dix, New Jersey, seeks to file a motion to vacate pursuant to 28 U.S.C. § 2255. Local Civil Rule 81.2 provides:

Unless prepared by counsel, . . . motions under 28 U.S.C. §2255 shall be in writing (legibly handwritten in ink or typewritten), signed by the petitioner or movant, on forms supplied by the Clerk.

L.Civ.R. 81.2(a). Petitioner did not use the habeas form supplied by the Clerk for § 2255 motions, i.e., A0243 (modified): DNJ-Habeas-004 (Rev. 01-2014); Petitioner appears to have used an outdated form.

IT IS therefore on this 5^th day of August, 2015;

ORDERED that the Clerk of the Court shall administratively terminate this case; Petitioner is informed that administrative termination is not a "dismissal" for purposes of the statute of limitations, and that if the case is reopened, it is not subject to the statute of limitations time bar if it was originally filed timely, see Papotto v. Hartford Life & Acc. Ins. Co., 731 F.3d 265, 275 (3d Cir. 2013) (distinguishing administrative terminations from dismissals); Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 n.2 (3d Cir. 2013) (describing prisoner mailbox rule generally); Dasilva v. Sheriff's Dep't., 413 F. App'x 498, 502 (3rd Cir. 2011) (per curiam) ("[The] statute of limitations is met when a [motion] is submitted to the clerk before the statute runs ...."); it is further

ORDERED that the Clerk of the Court shall forward Petitioner a blank Motion Under 28 U.S.C. § 2255 - A0243 (modified): DNJ-Habeas-004 (Rev. 01-2014); it is further

ORDERED that the Clerk's service of the blank section 2255 form shall not be construed as this Court's finding that the petition is or is not timely, or that Petitioner's claims are or are not procedurally defaulted; it is further

ORDERED that if Petitioner wishes to reopen this case, he shall so notify the Court, in a writing addressed to the Clerk of the Court, Clarkson S. Fisher Building & U.S. Courthouse, 402 East State Street, Room 2020, Trenton, New Jersey 08608, within 30 days of the date of entry of this Memorandum and Order; Petitioner's writing shall include a complete, signed § 2255 motion on the appropriate form; it is further

ORDERED that upon receipt of a writing from Petitioner stating that he wishes to reopen this case, and a complete, signed petition, the Clerk of the Court will be directed to reopen this case; and it is further

ORDERED that the Clerk of the Court shall serve a copy of this Memorandum and Order upon Petitioner by regular U.S. mail.

/s/_________

Michael A. Shipp

United States District Judge