UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

RASHEED AMIN, :

:

Petitioner, :

:

v. :

:

EVELYN DAVIS, et al., :

:

Respondents. :

 :

Civil Action No. 11-3312 (JBS)

MEMORANDUM OPINION

SIMANDLE, Chief Judge:

1. Petitioner filed a Petition for a Writ of Habeas Corpus

under 28 U.S.C. § 2254 challenging a judgment of conviction

entered in the Superior Court of New Jersey, Cape May County, on

April 3, 2008. (Dkt. 1.) 

2. By Order entered August 5, 2011, this Court ordered

Respondents to file and serve an answer and relevant portions of

the state court record. (Dkt. 4.)

3. On September 1, 2011, Respondents filed an Answer and

exhibits from the state court record, which Respondents

erroneously docketed as “Amended Complaint against Rasheed Amin.”

(Dkt. 8.) Respondents did not file a certification of service of

same upon Petitioner.

4. On July 25, 2012, Petitioner filed a motion for an order

to compel Respondents to comply with the Order entered August 5,

2011. Petitioner also filed a proof of service, proposed form of

order, and his certification supporting the motion. (Dkt. 9.) 

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In his certification, Petitioner Amin asserts: “Since November

2011 I have written respondents letters requesting that they

answer my habeas corpus petition. I have never received any

answers to my letters.” (Id. at 5-6.)

5. Respondents did not respond to Amin’s motion.

6. Habeas Rule 5 expressly requires a § 2254 respondent to

file an answer, when so ordered, and to attach to the answer

relevant transcripts and other documents from the underlying

state court record. See 28 U.S.C. § 2254 Rule 5. The Advisory

Committee’s Note to Habeas Rule 5 states that, although Habeas

Rule 5 does not indicate who the answer is to be served on, “it

necessarily implies that it will be mailed to the petitioner (or

to his attorney if he has one).” Advisory Committee’s 1976 Notes

on Habeas Rule 5. 

7. This Court finds that Habeas Rule 5 required Respondents

to serve the Answer and the exhibits filed with the Answer on

Petitioner. 

8. Habeas Rule 11 provides that the Federal Rules of Civil

Procedure, “to the extent that they are not inconsistent with

these rules, may be applied, when appropriate to petitions filed

under these rules.” 28 U.S.C. § 2254 Rule 11. Rule 10(c) of the

Federal Rules of Civil Procedure provides that “[a] copy of a

written instrument that is an exhibit to a pleading is a part of

the pleading for all purposes,” and Rule 5(a) requires service of

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every pleading subsequent to the original complaint, as well as

all papers filed with the court, upon all parties not in default. 

9. This Court further finds that the Federal Rules of Civil

Procedure required Respondents to serve the Answer and exhibits

upon Petitioner.

10. At least two circuits have held that the Habeas Rules

and the Rules of Civil Procedure require respondents in a § 2254

case to serve the answer and exhibits upon petitioners. See

Sixta v. Thaler, 615 F.3d 569, 569 (5th Cir. 2010) (“We conclude

that the applicable procedural rules require the respondent in a

§ 2254 proceeding to serve both the answer and any exhibits

attached thereto on the habeas petitioner, and we therefore do

not reach the constitutional question presented”); Thompson v.

Greene, 427 F.3d 263, 269 (4th Cir. 2005) (“Thus, the applicable

rules mandate that an answer in a habeas corpus proceeding [under

§ 2254], along with all of its exhibits, must be served on a

petitioner”). 

1

11. In Pindale v. Nunn, 248 F. Supp. 2d 361 (D.N.J. 2003),

this Court held “that service of the documents filed with and

 The Fourth Circuit further opined: “The constitutionality 1

of the Habeas Rules would be placed in serious question if they

were read to exempt habeas corpus proceedings from the general

service requirements . . . . Similarly, to read the Habeas Rules

as permitting a respondent to file exhibits that he fails to serve

upon a habeas corpus petitioner would essentially allow him to

communicate ex parte with the court, contrary to one of the basic

tenets of our adversary system.” Thompson, 427 F.3d at 269 n.7.

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attached to an answer is required by Habeas Rule 5; moreover,

even if service were not explicitly required by Habeas Rule 5,

Rules 12(a) and 5(a) of the Federal Rules of Civil Procedure

apply to § 2254 cases through Habeas Rule 11[], and compel this

result.” Id. at 367. 

12. Because Habeas Rule 5, as well as the Federal Rules of

Civil Procedure, require service of the Answer and exhibits filed

with the Answer upon Petitioner, this Court will grant

Petitioner’s motion and direct Respondents to file the Answer and

exhibits, and to serve on Petitioner hard copies of the Answer

and exhibits filed with the Answer. 

13. This Court will also extend Petitioner’s time to file a

reply to the Answer until 45 days after he receives it.

14. An appropriate Order accompanies this Memorandum

Opinion.

 

s/ Jerome B. Simandle 

JEROME B. SIMANDLE

Chief Judge

Dated: November 19, 2012 

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