Opinion
Civ. No. 19-45 (NLH)
01-31-2019
MALIK DERRY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
IT APPEARING THAT:
1. Petitioner is an inmate currently confined at the U.S. Penitentiary at Lee in Jonesville, Virginia, and has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (the "Motion"). ECF No. 1.
2. Although Petitioner submitted his Motion on the correct form, he failed to complete it in its entirety. Specifically, he failed to sign the certification on page 15, which requires him to acknowledge that he must include all the grounds for relief from the conviction or sentence in this Motion and if he fails to set forth all the grounds, he may be barred from presenting additional grounds at a later date.
This language and certification is required by United States v. Miller, 197 F.3d 644 (3d Cir. 1999).
3. Petitioner must either file an amended motion that includes the signed certification on page 15 of the § 2255 form or supplement the Motion by signing and filing the certification on page 15 of the § 2255 form.
IT IS THEREFORE on this 31st day of January, 2019,
ORDERED this matter shall be ADMINISTRATIVELY TERMINATED; and it is further
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 (2013) (distinguishing administrative terminations from dismissals); Jenkins v. Superintendent of Laurel Highlands, 705 F.3d 80, 84 n.2 (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 [petition] is submitted to the clerk before the statute runs ....").
ORDERED that the Clerk of the Court shall forward Petitioner a blank § 2255 form— AO243 (modified): DNJ-Habeas-004 (Rev. 01-2014); and it is further
ORDERED that the Clerk's service of the blank § 2255 form shall not be construed as this Court's finding that the motion is or is not timely; and it is further
ORDERED that, if Petitioner wishes to re-open this action, he shall so notify the Court within 30 days of the date of entry of this Order, in writing addressed to Clerk of the Court, at Mitchell H. Cohen Building and U.S. Courthouse, Fourth and Cooper Streets, Camden, New Jersey, 08101; Petitioner's writing shall include either an amended motion which includes a completed page 15 certifying that the amended motion must include all claims or a completed page 15 certifying that the Motion must include all claims; and it is finally
ORDERED that the Clerk of the Court shall serve a copy of this Order upon Petitioner by regular U.S. mail.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J. At Camden, New Jersey