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BARNES v. POWER - Document No. 4

BARNES v. POWER - Document No. 4

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Published by Justia.com
MEMORANDUM ORDER; ORDER that the Court construes the Patitioner's "Notice of motion" as a 59(e) application and that Clerk shall reopen the file on this matter for the purpose of entertaining the petitioner's Rule 59(e) Application. Signed by Judge Katharine S. Hayden on 10/22/07. (ji, ) 2:2007cv03352 New Jersey District Court
MEMORANDUM ORDER; ORDER that the Court construes the Patitioner's "Notice of motion" as a 59(e) application and that Clerk shall reopen the file on this matter for the purpose of entertaining the petitioner's Rule 59(e) Application. Signed by Judge Katharine S. Hayden on 10/22/07. (ji, ) 2:2007cv03352 New Jersey District Court

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Published by: Justia.com on Apr 30, 2008
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10/14/2013

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
TYRONE BARNES,
::
Petitioner,
::
v.
::
T. M. POWER,
::
Respondent.
:
:
Civil No. 07-3352 (KSH)
MEMORANDUM
ORDER
IT IS APPEARING THAT:
1.

The proceedings in this legal action have been initiated on July 5, 2007, by the petitioner's filing of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. \u00a7 2241, and submission of his filing fee.

2.

Since the petitioner is a state prisoner challenging denial of parole by the state parole board, he may challenge the fact or duration of his/her confinement pursuant to a state conviction only by filing a petition for writ of habeas corpus under 28 U.S.C. \u00a7 2254. Consequently, on October 2, 2007, the petition was dismissed for lack of jurisdiction without prejudice to the petitioner's filing of a timely \u00a7 2254 petition on the grounds that (a) section 2241 was not an alternative to 28 U.S.C. \u00a7 2254, and it could have been utilized by the petitioner only if section 2254 was either inadequate or ineffective remedy; (b) in the petitioner's case, section 2254 was neither inadequate nor ineffective remedy; (c) re-

Case 2:07-cv-03352-KSH Document 4
Filed 10/23/2007 Page 1 of 3
BARNES v. POWER
Doc. 4
Dockets.Justia.com
1Petitioner's \u201cNotice of motion\u201d appears to be executed on
October 9, 2007, and thus, is timely under Rule 59(e) and Local
Rule 7.1(i).
Page -2-

characterization of the petition as a petition filed pursuant to 28 U.S.C. \u00a7 2254 was not necessary since the petitioner's rights could not have been unduly prejudiced by dismissal; and (d) it was not apparent to the Court whether the petitioner intended his \u00a7 2241 petition to be the petitioner\u2019s one all- inclusive \u00a7 2254 Application, in view of consequences detailed in Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000).

3.

On October 19, 2007, the petitioner submitted a document titled \u201cNotice of motion for reconsideration to open case and accept [the petitioner's \u00a7 2241] habeas corpus petition . . . as [the petitioner's] all-inclusive [\u00a7] 2254 application.\u201d1 This \u201cNotice of motion\u201d made it apparent that the petitioner was moving the Court to reconsider the Court's previous order the petition to dismiss the petition for lack of jurisdiction without prejudice to the petitioner's filing of a timely \u00a7 2254 petition.

It is on this 22
day of October, 2007,
nd
ORDERED that the Court construes the petitioner's \u201cNotice of
motion\u201d as the petitioner's application made pursuant to Federal
Rule of Civil Procedure 59(e); and it is further
Case 2:07-cv-03352-KSH Document 4
Filed 10/23/2007 Page 2 of 3

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