Free Order (AEDPA) - District Court of Delaware - Delaware

Case 1:08-cv-00125-SLR

Document 3

Filed 03/24/2008

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE


EZEADIGO ODUCHE, Petitioner,

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v.
ATTORNEY GENERAL OF THE STATE OF DELAWARE, and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Respondents.

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Civil Action No. 08-125-SLR

ORDER
WHEREAS, petitioner has filed papers for federal habeas corpus relief pursuant to 28 U.S.C. § 2254; and WHEREAS, the Antiterrorism and Effective Death Penalty Act of 1996 ("AE 0 PAil) , 28 U.S.C. § 2244, effectively precludes petitioners from filing a second or subsequent habeas petition except in the most unusual of circumstances; and WHEREAS, the United States Court of Appeals for the Third Circuit has mandated that, before ruling on the merits of a habeas petition, the petitioner must be given notice that the AEDPA applies to the pending petition, see United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and Mason v. Meyers, 208 F.3d 414 (3d Cir. 2000); and WHEREAS, petitioner alleges ineffective assistance of counsel in connection with his March 30, 2006 conviction for aggravated menacing in the Delaware Superior Court for aggravated menacing. (0.1. 1); and WHEREAS, petitioner's habeas application states that he is in custody at

Case 1:08-cv-00125-SLR

Document 3

Filed 03/24/2008

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the York County Prison, in York, Pennsylvania, and it appears that he is being held there as an alien convicted of an aggravated felony. (D.1. 1); and WHEREAS, petitioner names the United States Department of Homeland Security as one of the respondents in this proceeding.
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and

WHEREAS, the proper respondents to this habeas proceeding are the warden of the facility where petitioner is housed and the attorney general of the state wherein the challenged conviction was issued. See Yi v. Maugans, 24 F.3d 500, 507 (3d Cir. 1994); Rule 2, Rules Governing Section 2254 Cases, 28 U.S.C. foil. § 2254, Advisory Committee Notes 1976 Adoption, Subdiv. (b)(3). NOW, THEREFORE, IT IS ORDERED this Jg'ff. day of March, 2008, that: Petitioner must file the attached election form, indicating the proper respondents as explained above, with the court on or before ~<:...._l....,j)'--_

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. Failure to timely return the completed election form will result in

the court's ruling on the pending petition as filed.

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Case 1:08-cv-00125-SLR

Document 3

Filed 03/24/2008

Page 3 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE


EZEADIGO ODUCHE, Petitioner,

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) ) )

v.
ATTORNEY GENERAL OF THE STATE OF DELAWARE, and UNITED STATES DEPARTMENT OF HOMELAND SECURITY, Respondents.

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) ) ) )
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Civil Action No. 08-125-SLR

AEDPA ELECTION FORM

1.

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I wish to replace the respondents to my pending petition with the following respondents: _

I wish the court to rule on my § 2254 petition as currently pending, recognizing the substitution of the aforementioned respondents. I realize that the law does not allow me to file successive or later petitions unless I receive certification to do so from the United States Court of Appeals for the Third Circuit; therefore, this petition will be my one opportunity to seek federal habeas corpus relief.

2.

_

I wish to amend my § 2254 petition to include all the grounds I have. I will do so within thirty (30) days. I realize that the law does not allow me to file successive or later petitions unless I receive certification to do so from the

Case 1:08-cv-00125-SLR

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Filed 03/24/2008

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United States Court of Appeals for the Third Circuit; therefore, this amended all-inclusive petition will be my one opportunity to seek federal habeas corpus relief.

3.

_

I wish to withdraw my § 2254 petition without prejudice to file one all-inclusive petition in the future; that is, one that raises all the grounds I have for federal habeas corpus relief. I realize this all-inclusive petition must be filed within the one-year period as defined by 28 U.S.C. § 2244(d). See Swartz v. Meyers, 204 F.3d 417 (3d Cir. 2000).

4.

I am not seeking federal habeas corpus relief LInder § 2254. I am instead seeking relief under

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Petitioner