                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2002

Stokes v. Hendricks
Precedential or Non-Precedential: Non-Precedential

Docket No. 00-2639




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Recommended Citation
"Stokes v. Hendricks" (2002). 2002 Decisions. Paper 316.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/316


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                                           NOT PRECEDENTIAL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:)
                     _______________________
                            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?
                            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
