Kevin Stokes v. Roy L. Hendricks

NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-2639
_______________________
KEVIN STOKES, Appellant
v.
ROY L. HENDRICKS;
ATTORNEY GENERAL OF THE STATE OF
NEW JERSEY, JOHN J. FARMER, JR.
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 00-cv-01442)
District Judge: Honorable John C. Lifland
_______________________________________
Argued: May 21, 2002
Before: BECKER, Chief Judge, GREENBERG, Circuit Judge,
and BARZILAY, Judge, U.S. Court of International Trade.
(Filed: May 31, 2002)
JEAN M. HARTMANN, ESQUIRE (ARGUED)
345 Bement Avenue
Staten Island, NY 10310
Counsel for Appellant
DONALD C. CAMPOLO, ESQUIRE
Assistant Attorney General
Acting Essex County Prosecutor
ROBERT L. CEREFICE, ESQUIRE (ARGUED)
Special Deputy Attorney General
Acting Assistant Prosecutor
50 West Market Street
Newark, NJ 07102
Counsel for Appellees
Transcribed by: Geraldine C. Laws, CET
(Proceedings recorded by electronic sound recording;
transcript provided by AAERT-certified transcriber.)
(The following is the bench opinion delivered in
open court:)
_______________________

-- 1 of 3 --

BENCH OPINION
_______________________
BECKER, Chief Judge.
HON. JUDGE BECKER: The judgment of the Court is as
follows: The Court has carefully examined the record in this
case, and the actions of the District Court. While the Court
appreciates that Judge Lifland thought that he was, in
practical terms, satisfying the precepts of this Court,
announced in United States v. Miller, 197 F.3d 644 (3d Cir. 1999),
translated to the Section 2254 context in Mason v. Meyers, 208 F.3d 414
(3d Cir.2000), the panel is satisfied that his actions do not satisfy those cases.
Therefore, the District Court’s order denying habeas
corpus relief will be vacated and the case will be remanded
to the District Court to provide Stokes the options available
under Miller. He can either have his petition ruled upon as
filed but lose his ability to file successive petitions
absent certification by the Court of Appeals, or withdraw the
petition and file one all inclusive Section 2254 petition
within 120 days and move for abeyance if he desires the Court
to consider the issues pending in the State Court post-
conviction relief petition.
This panel intimates no view as to what action Judge
Lifland should take on any such motion, but leave the matter
to him on remand.
Is that agreeable, Judge Greenberg?
HON. JUDGE GREENBERG: Yes.
HON. JUDGE BECKER: Judge Barzilay?
HON. JUDGE BARZILAY: Yes.
HON. JUDGE BECKER: Anything to add, Counsel?
COUNSEL: The only question I had was that will this be
communicated to Judge Lifland?

-- 2 of 3 --

HON. JUDGE BECKER: Oh, yes. This will be
transcribed. What I just delivered, I just delivered the
bench opinion which will be the opinion and judgment of the
Court. It will be transcribed and transmitted to Judge
Lifland.
COUNSEL: Thank you.
HON. JUDGE BECKER: Thank you. Appreciate it very
much.
(Bench opinion concluded.) ___________________
TO THE CLERK:
Please file the foregoing Opinion.
BY THE COURT:
/s/ Edward R. Becker
Chief Judge

-- 3 of 3 --