Kemp v. Noeth
- Ronnie Abrams
- 1:20-cv-09121
- U.S. District Court · Southern District of New York
- 2
In Kemp v. Noeth, Chief Judge Colleen McMahon ordered pro se petitioner Gary Kemp to submit an original signature before his habeas case could proceed.
Gary Kemp was required to provide an original signature within 30 days; the case could be dismissed without prejudice if he did not comply. Joseph Noeth was not required to answer at that time.
What happened
In Kemp v. Noeth, Gary Kemp filed a petition asking for federal review of his conviction and sentence, but submitted it without a handwritten or personally placed signature. The petition also omitted pages explaining his grounds for relief.
The court ordered Kemp to send the petition’s signature page with an original signature within 30 days. The court said no response from Joseph Noeth was required yet and noted that Kemp could file an amended petition stating his grounds for challenging his conviction and sentence.
Chief Judge Colleen McMahon did not decide the habeas claims. She warned that the case would be dismissed without prejudice if Kemp did not comply, and denied permission to appeal without paying the filing fee because any appeal would not be taken in good faith.
The detailed version
- Kemp v. Noeth · No. 1:20-cv-09121
- Ronnie Abrams
- Nov. 4, 2020
Background
Gary Kemp, proceeding without a lawyer, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. The petition was not signed. The opinion also notes that Kemp did not include pages stating the grounds for relief. The court did not require Joseph Noeth to file an answer at that time.
Signature requirement
Federal Rule of Civil Procedure 11(a) and Local Civil Rule 11.1(a) require an unrepresented party to sign a pleading or other court filing personally. The court explained that the required signature must be handwritten or another mark personally placed by the signer.
Order and consequences
The court directed Kemp to resubmit the petition’s signature page with an original signature within 30 days of the order. The Clerk of Court was directed to mail the order to Kemp and record service on the docket. The court stated that Kemp could file an amended petition explaining his grounds for challenging his conviction and sentence. If he failed to comply within the allowed time, the action would be dismissed without prejudice.
The court certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith and denied permission to appeal without paying the filing fee. The order did not address the merits of Kemp’s habeas claims.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.