KERN v. OWENS

Filing 5

OPINION. Signed by Chief Judge Jerome B. Simandle on 4/9/2015. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BRUCE KERN,

HONORABLE JEROME B. SIMANDLE
Petitioner,
Civil Action
No. 15-1099 (JBS)

v.
DAVID S. OWENS, JR.,

OPINION
Respondent.

APPEARANCES:
Bruce Kern, Petitioner pro se
#4302412
Camden County Correctional Facility
330 Federal Street
Camden, NJ 08101
SIMANDLE, Chief Judge:
INTRODUCTION
Petitioner Bruce Kern filed a Petition for a Writ of Habeas
Corpus under 28 U.S.C. § 2241, challenging his pretrial
confinement at Camden County Correctional Facility (“CCCF”).
(Docket Entry 1). For the reasons expressed below, this Court
will dismiss the Petition, and no certificate of appealability
shall issue.
BACKGROUND
Petitioner states he has been confined as a pretrial
detainee at CCCF since December 29, 2014. He appeared before a
judge on January 15, 2015, at which time his bail was reduced

from $52,500 to $35,000 cash or bond. (Docket Entry 1 at 16). On
January 22, 2015, he filed a petition for writ of habeas corpus
with the New Jersey Superior Court, Law Division pursuant to
N.J. STAT. ANN. 2A:67-15(a) (West, WestlawNext current through L.
2015, c.32). (Docket Entry 1 at 15). He claimed he had not been
arraigned on all of the charges presently pending against him;
his bail is excessive and unreasonable in violation of the
Eighth and Fourteenth Amendment; he wanted to waive his right to
a Grand Jury and proceed directly to trial; he is being detained
with sentenced inmates; he has been denied screening and
treatment for Hepatitis C in deliberate indifference to his
medical needs; and he was being denied meaningful access to the
law library and thus forced to accept appointed counsel. (Docket
Entry 1 at 15-22). He asked for the court to respond to his
petition within seven days, or he would proceed to higher courts
every seven days thereafter. (Docket Entry 1 at 23-24).
In accordance with this statement, Petitioner filed a
habeas petition with the Appellate Division on January 30, 2015.
(Docket Entry 1 at 25). He submitted a notice of appeal from the
“Superior Court, Law Division’s arbitrary inaction” on his
petition filed the previous week. (Docket Entry 1 at 27).
Petitioner raised the same grounds as before, but added a claim
of arbitrary inaction by the Law Division. (Docket Entry 1 at
32).
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Petitioner filed the instant petition with this Court on
February 5, 2015. In his petition, he alleges he has not been
arraigned on all of the charges presently pending against him
during this time (Ground One); his bail is excessive and
unreasonable in violation of the Eighth and Fourteenth
Amendments (Ground Two); he has been denied the opportunity to
challenge the determination of probable cause (Ground Three); he
has been denied meaningful access to the courts (Ground Four);
he is being detained with sentenced inmates and “subjected to
harshly punitive conditions of confinement” (Ground Five); he
has been denied screening and treatment for Hepatitis C in
deliberate indifference to his medical needs (Ground Six); and
the combined effect of the previous six grounds “are intended to
compel Kern to be a witness against himself” (Ground Seven). By
Order dated February 23, 2015, this Court administratively
terminated the petition for failure to pay the filing fee or
submit an application to proceed in forma pauperis. (Docket
Entry 2). Petitioner paid the filing fee on March 13, 2015,
therefore the Court shall order that this matter reopened.
On March 28, 2015, Petitioner submitted a supplemental
“traverse” in support of his petition. (Docket Entry 3). In his
submission, Petitioner states he received from the Clerk of the
Appellate Division a “pro se” kit for pursuing his state
appellate claims on February 11, 2015. (Docket Entry 3 ¶ 5). He
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further stated the grievances he filed with CCCF had not been
responded to his satisfaction, and the state courts have not
responded to his habeas petitions or motions. (Docket Entry 3 ¶¶
6-8). Petitioner attempted to file a motion for leave to appeal
with the Appellate Division regarding his complaints, however he
asserts his efforts to file the motion have been “stonewalled”
by CCCF. (Docket Entry 3 ¶¶ 9-17). CCCF responded to his filed
grievances regarding his medical care on February 20, 2015.
(Docket Entry 3 at 24-29). He requests this Court order his
immediate release pending a hearing. (Docket Entry 3 ¶ 20).
STANDARD OF REVIEW
Petitioner brings this Petition for a Writ of Habeas Corpus
as a pro se litigant. 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).
A federal district court must dismiss a habeas corpus
petition if it appears from the face of the petition that the
petitioner is not entitled to relief. 28 U.S.C. § 2254 Rule 4
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(made applicable through Rule 1(b)); see also McFarland v.
Scott, 512 U.S. 849, 856 (1994); Siers v. Ryan, 773 F.2d 37, 45
(3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
DISCUSSION
District courts have jurisdiction under 28 U.S.C. § 2241 to
issue a writ of habeas corpus before a criminal judgment is
entered against an individual in state court. See Moore v. De
Young, 515 F.2d 437, 441-42 (3d Cir. 1975). “Nevertheless, that
jurisdiction must be exercised sparingly in order to prevent in
the ordinary circumstance ‘pre-trial habeas interference by
federal courts in the normal functioning of state criminal
processes.’” Duran v. Thomas, 393 Fed. Appx. 3, 4 (3d Cir. 2010)
(quoting Moore, 515 F.3d at 445-46).

Addressing the question

whether a federal court should ever grant a pretrial writ of
habeas corpus to a state prisoner, 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 special
showing of the need for such adjudication and has
exhausted state remedies.

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Moore, 515 F.2d at 443. Petitioner has not made the showing of
extraordinary circumstances necessary to justify this Court’s
intervention before the state courts have had an opportunity to
consider his claims. Although Petitioner asserts the Superior
Court Law and Appellate Divisions have not been responsive to
his petitions, in order to be deemed exhausted “[a] claim must
be presented not only to the trial court but also to the state's
intermediate court as well as to its supreme court.” Evans v.
Court of Common Pleas, Delaware Cnty., Pa., 959 F.2d 1227, 1230
(3d Cir. 1992). Petitioner has made no showing that he has
attempted to bring his claims before the New Jersey Supreme
Court.
Grounds One, Three, and Seven are essentially speedy trial
complaints. The Third Circuit has previously held “there was
nothing in the nature of the speedy trial right to qualify it as
a per se extraordinary circumstance that warranted dispensing
with the exhaustion requirement.” Duran, 393 Fed. Appx. at 5
(citing Moore, 515 F.2d at 446). Petitioner’s speedy trial
claims will still be available to him “as an affirmative defense
at trial and thereafter, on appellate review.” Moore, 515 F.2d
at 445. “Once he has exhausted state court remedies, the federal
courts will, of course, be open to him, if need be, to entertain
any petition for habeas corpus relief which may be presented.
These procedures amply serve to protect [Petitioner]'s
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constitutional rights without pre-trial federal intervention in
the orderly functioning of state criminal processes.” Id. at
449. The same is true for Petitioner’s claim of being held on
excessive and unreasonable bail.1
As Petitioner has not made “a substantial showing of the
denial of a constitutional right” under 28 U.S.C. § 2253(c)(2),
this Court will deny a certificate of appealability. See Miller–
El v. Cockrell, 537 U.S. 322, 327 (2003).
CONCLUSION
Based on the foregoing, this Court will dismiss the
Petition, and a certificate of appealability shall not issue. An
accompanying Order will be entered.

April 9, 2015
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

1

The Court takes note that three of the grounds for relief
raised, Grounds Four, Five, and Six, present issues more
appropriately brought before this Court in a civil rights
complaint pursuant to 42 U.S.C. § 1983. The Clerk shall be
directed to provide Petitioner with the appropriate forms to
enable him to refile those claims under § 1983, after he has
first exhausted the administrative claims procedures of the
CCCF.
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