BARLEY v. BONDISKEY
Filing
7
OPINION FILED. Signed by Judge Jerome B. Simandle on 8/4/11. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
EARL BARLEY,
:
10-6426 (JBS)
Petitioner,
:
v.
:
WARDEN JOSEPH BONDISKEY,
Respondent.
OPINION
:
:
APPEARANCES:
Petitioner pro se
Earl Bailey
#189665
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, NJ 08330
SIMANDLE, District Judge
Petitioner Earl Bailey, a pre-trial detainee currently
confined at the Atlantic County Justice Facility in Mays Landing,
New Jersey, has submitted a petition for a writ of habeas corpus1
and an application to proceed in forma pauperis pursuant to 28
U.S.C. § 1915(a).
1
The respondent is Warden Joseph Bondiskey.
The Petition asserts jurisdiction pursuant to 28 U.S.C. §
2241 but was docketed under 28 U.S.C. § 2254. For state
prisoners, § 2254 is a post-conviction remedy. Jurisdiction to
grant the writ to pre-trial detainees exists, however, under 28
U.S.C. § 2241. See Moore v. DeYoung, 515 F.2d 437, 441-42 (3d
Cir. 1975).
Based on his affidavit of indigence, the Court will grant
Petitioner Earl Bailey’s application to proceed in forma
pauperis.
Because it appears from a review of the Petition that
Petitioner Bailey is not entitled to issuance of the writ at this
time, the Court will dismiss the Petition.
I.
See 28 U.S.C. § 2243.
BACKGROUND
Petitioner asserts that he was arrested as a “victim of
circumstance” for having been present at the scene of a police
response to a domestic violence emergency call.
He alleges that
he does not know the individuals involved but despite his lack of
involvement he was searched and arrested.
He then alleges that
once in custody he was denied a probable cause hearing because
the Atlantic City Municipal Court does not hear probable cause
motions any longer.
According to documents attached to the
Petition, the response from the Municipal Court was “Please be
advised our court doesn’t hear proable [sic] cause hearing [sic]
any longer, contact Superior Court for more information.”
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
United States Code Title 28, Section 2243 provides in
relevant part as follows:
A court, justice or judge entertaining an
application for a writ of habeas corpus shall forthwith
award the writ or issue an order directing the
respondent to show cause why the writ should not be
granted, unless it appears from the application that
the applicant or person detained is not entitled
thereto.
2
A pro se pleading is held to less stringent standards than
more formal pleadings drafted by lawyers.
Estelle v. Gamble, 429
U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972).
A pro se habeas petition and any supporting submissions must be
construed liberally and with a measure of tolerance.
See Royce
v. Hahn, 151 F.3d 116, 118 (3d Cir. 1998); Lewis v. Attorney
General, 878 F.2d 714, 721-22 (3d Cir. 1989); United States v.
Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399
U.S. 912 (1970).
Nevertheless, a federal district court can
dismiss a habeas corpus petition if it appears from the face of
the petition that the petitioner is not entitled to relief.
See
Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773
F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
See also 28 U.S.C. §§ 2243, 2254, 2255.
III.
ANALYSIS
Addressing the question whether a federal court should ever
grant a pre-trial writ of habeas corpus to a state prisoner, the
Court of Appeals for the Third Circuit has held:
(1)
federal courts have “pre-trial” habeas corpus
jurisdiction;
(2)
that jurisdiction without exhaustion should not be
exercised at the pre-trial stage unless
extraordinary circumstances are present ... ;
(3)
where there are no extraordinary circumstances and
where petitioner seeks to litigate the merits of a
constitutional defense to a state criminal charge,
the district court should exercise its “pre-trial”
habeas jurisdiction only if petitioner makes a
3
special showing of the need for such adjudication
and has exhausted state remedies.
Moore v. DeYoung, 515 F.2d 437, 443 (3d Cir. 1975).
As noted above, Petitioner does not allege that he has
exhausted his state remedies in any way.
In the absence of
exhaustion, this Court should exercise pre-trial habeas
jurisdiction only if “extraordinary circumstances are present.”
Petitioner has alleged no extraordinary circumstances.
Accordingly, there is no basis for this Court to intervene in a
pending state criminal proceeding.
This Court expresses no opinion as to the merits of
Petitioner’s claim.
IV.
CONCLUSION
For the reasons set forth above, the Petition will be
dismissed without prejudice.
An appropriate order follows.
s/ Jerome B. Simandle
Jerome B. Simandle
United States District Judge
Dated:
August 4, 2011
4
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?