NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

JAMES C. MARLIN, :

:

Petitioner, :

:

v. :

:

STATE OF NEW JERSEY, :

:

Respondent. :

 :

Civil Action No. 11-776 (MLC)

O P I N I O N

It appearing that:

1. On February 14, 2011, the Clerk received from Petitioner,

an inmate incarcerated at Northern State Prison in New Jersey, a

nine-page typed letter addressed to Chief Judge Garrett E. Brown,

Jr., regarding State v. James C. Marlin, New Jersey Indictment

No. 05-12-1564-I. Petitioner labeled the letter as “NOTICE TO

INFORM THE FEDERAL COURT(S) OF THE VIOLATIONS OF THE DEFENDANT’S

CONSTITUTIONAL RIGHTS.” (Docket Entry #1, p. 1.) Petitioner

states in the letter that he is “inform[ing] the courts of the

said on going violations of the defendant’s constitutional rights

within this said matter . . . . If in fact this Court chooses to

accept this letter within the form of a PETITION FOR HABEAS

CORPUS, then the defendant will not reject to such acceptions

[sic] from this court.” (Id.) Petitioner thereafter filed a

one-page letter referencing the notice of the assignment of this

matter to the undersigned in which he asks whether further

information is required. (Docket Entry #3.)

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2. A prisoner in custody pursuant to the judgment of a

State court who seeks a determination that the custody violates

the Constitution, laws, or treaties of the United States, is

permitted to file one petition for a writ of habeas corpus under

28 U.S.C. § 2254 in the appropriate district court. Prisoners 1

challenging the legality of their detention pursuant to the

judgment of a State court must include in this one all-inclusive

§ 2254 petition all available federal grounds to collaterally

attack the State judgment and, except in extremely limited

circumstances, file this one all-inclusive petition within one

year of the date on which the judgment of conviction becomes

final by the conclusion of direct review or the expiration of the

time for seeking such review. See 28 U.S.C. § 2244(d). 

3. Absent extremely limited circumstances and the prior

approval of the United States Court of Appeals for the Third

Circuit, a claim presented in a second or successive § 2254

petition shall be dismissed by the district court. See 28 U.S.C.

§ 2244(b).

4. A district court also may not grant a writ of habeas

corpus under § 2254 to a person in custody pursuant to a state

 Section 2254(a) of Title 28 provides in relevant part: 1

(a) [A] district court shall entertain an application

for a writ of habeas corpus in behalf of a person in

custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the

Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a). 

2

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judgment unless the petitioner has exhausted the remedies

available in the courts of the State or, in extremely limited

circumstances, exhaustion is excused by 28 U.S.C. § 2254(b)(1)(B). 

See Henderson v. Frank, 155 F.3d 159, 164 (3d Cir. 1998); Lambert

v. Blackwell, 134 F.3d 506, 513 (3d Cir. 1997). The Exhaustion

Doctrine requires a petitioner challenging custody pursuant to a

New Jersey judgment of conviction to fairly present the factual

and legal basis of every federal ground to all three levels of

the New Jersey courts (the Law Division and the Appellate

Division of the Superior Court of New Jersey, and the New Jersey

Supreme Court) before raising those grounds in federal court. 

See O’Sullivan v. Boerckel, 526 U.S. 838 (1999).2

 “To ‘fairly present’ a claim, a petitioner must present a 2

federal claim’s factual and legal substance to the state courts

in a manner that puts them on notice that a federal claim is being

asserted,” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir. 1999),

and must “provide the state courts with a ‘fair opportunity’ to

apply controlling legal principles to the facts bearing upon his

constitutional claim”. Anderson v. Harless, 459 U.S. 4, 6 (1982)

(citation and internal quotation marks omitted). “[S]tate

prisoners must give the state courts one full opportunity to

resolve any constitutional issues by invoking one complete round

of the State’s established appellate review process,” including a

petition for discretionary review before the State’s highest

court. O’Sullivan, 526 U.S. at 845. Thus, the Supreme Court

“held in Rose v. Lundy, 455 U.S. 509 . . . (1982), that federal

district courts may not adjudicate mixed petitions for habeas

corpus, that is, petitions containing both exhausted and

unexhausted claims.” Rhines v. Weber, 544 U.S. 269, 273 (2005). 

The Supreme Court imposed “a requirement of ‘total exhaustion’

and directed federal courts to effectuate that requirement by

dismissing mixed petitions without prejudice and allowing

petitioners to return to state court to present the unexhausted

claims to that court in the first instance.” Id. at 274. 

3

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5. “Habeas corpus petitions must meet heightened pleading

requirements.” McFarland v. Scott, 512 U.S. 849, 856 (1994). 

The Habeas Rules governing this Court require a § 2254 petition

to specify the judgment being challenged, specify the federal

grounds for relief available to the petitioner, state the facts

supporting each ground, state the relief requested, be

typewritten or legibly handwritten, be signed under penalty of

perjury by the petitioner or an authorized person, and follow the

form appended to the rules. See 28 U.S.C. § 2254 Rule 2(c) &

(d); see also Mayle v. Felix, 545 U.S. 644, 655 (2005).3

6. Local Civil Rule 81.2(a) requires a pro se § 2254

petition to be on the current § 2254 form supplied by the Clerk. 

See L.Civ.R. 81.2(a); AO 241 (Rev. 10/07) at http://

www.njd.uscourts.gov/ProSe/2254.pdf (accessed Mar. 7, 2011). 

 Habeas Rule 2 provides: 3

(c) Form. The petition must:

(1) specify all the grounds for relief available

to the petitioner;

(2) state the facts supporting each ground;

(3) state the relief requested;

(4) be printed, typewritten, or legibly

handwritten; and 

(5) be signed under penalty of perjury . . .

(d) Standard Form. The petition must substantially

follow either the form appended to these rules or a form

prescribed by a local district-court rule. The clerk

must make forms available to petitioners without charge.

28 U.S.C. § 2254 Rule 2(c), (d).

4

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7. Habeas Rule 4 requires a District Judge to sua sponte

dismiss a § 2254 petition without ordering a responsive pleading

“[i]f it plainly appears from the petition and any attached

exhibits that the petitioner is not entitled to relief in the

district court.” 28 U.S.C. § 2254 Rule 4. Thus, “Federal courts

are authorized to dismiss summarily any habeas petition that

appears legally insufficient on its face.” McFarland, 512 U.S. at

856. Vague and conclusory allegations contained in a petition 4

may be disposed of summarily without further investigation by the

district court. See United States v. Thomas, 221 F.3d 430, 437

(3d Cir. 2000); United States v. Dawson, 857 F.2d 923, 928 (3d

Cir. 1988).

8. It is not clear whether Petitioner desires Docket Entry

#1 to be his one and only all-inclusive § 2254 petition

challenging the conviction as to New Jersey Indictment No. 05-12-

1564-I. To the extent that Petitioner intended Docket Entry #1

to be his one and only § 2254 petition challenging this

conviction, then this Court will summarily dismiss same as

deficient in form pursuant to Habeas Rule 4 because:

A. It is not on the § 2254 form supplied by the Clerk,

as required by Local Civil Rule 81.2(a);

 See also Mayle, 545 U.S. at 655 (“Under Habeas Corpus Rule 4

4, if ‘it plainly appears from the petition . . . that the

petitioner is not entitled to relief in district court,’ the

court must summarily dismiss the petition without ordering a

responsive pleading”).

5

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B. It does not specify the federal grounds for relief

and state the facts supporting each ground, as required

by Habeas Rule 2(c)(1) and (2);

C. It does not state the relief requested, as required

by Habeas Rule 2(c)(3).

9. The dismissal of Docket Entry #1 is without prejudice to

the filing of Petitioner’s one all-inclusive § 2254 petition on

the § 2254 form provided by the Clerk.5

10. This Court will deny a certificate of appealability

pursuant to 28 U.S.C. § 2253(c)(2) because jurists of reason would

not find it debatable that dismissal of the Petition without

prejudice is correct. See Slack v. McDaniel, 529 U.S. 473, 484

(2000) (“When the district court denies a habeas petition on

procedural grounds without reaching the prisoner’s underlying

constitutional claim, a COA should issue when the prisoner shows,

at least, that jurists of reason would find it debatable whether

the petition states a valid claim of the denial of a

constitutional right and that jurists of reason would find it

 The current § 2254 form, which the Clerk will provide to 5

Petitioner, requires petitioners to specify the proceedings in

which each ground was presented to all three levels of the state

court system. Plaintiff is expressly directed to complete the

entire form, including those portions of the form which require

the petitioner to show that each ground for relief was exhausted. 

In addition, if this Court orders Respondents to answer the

amended petition, then in accordance with Habeas Rule 5, this

Court will order Respondents to provide the record of the state

court proceeding, including relevant transcripts. Petitioner is

therefore directed not to attach exhibits.

6

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debatable whether the district court was correct in its

procedural ruling”). 

11. The Court will issue an appropriate Order.

 s/ Mary L. Cooper 

MARY L. COOPER

United States District Judge

Dated: March 10, 2011

7

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