MOORE v. OWENS et al
MEMORANDUM OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 4/6/17. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
BRIAN A. MOORE,
HONORABLE JEROME B. SIMANDLE
No. 16-8845 (JBS)
DAVID OWENS, et al.,
SIMANDLE, Chief Judge:
Petitioner is proceeding pro se with an amended petition
for writ of habeas corpus pursuant to 28 U.S.C. § 2254, Docket
Entry 11. Based on the affidavit of indigency, Docket Entry 3,
the application to proceed in forma pauperis is granted.
A Camden County jury convicted Petitioner of 5 counts
of human trafficking and 6 counts of promoting prostitution.
Petition ¶ 5. Sentencing was scheduled for December 21, 2016.
Id. ¶ 2(b).
Petitioner filed a § 2254 petition on November 28,
2016. Docket Entry 1. On December 1, 2016, the Court
administratively terminated the petition as it was not on the
proper form and Petitioner had not submitted the filing fee or
an application to proceed in forma pauperis. The Court directed
Petitioner to resubmit his petition within 30 days.
The Clerk’s Office received a petition however it was
inadvertently given a new docket number. The Court ordered the
new case to be closed and for the amended petition to be filed
in this action.
Habeas Rule 4 requires the assigned judge to sua
sponte dismiss a habeas petition or application without ordering
a responsive pleading under certain circumstances:
If it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled
to relief in the district court, the judge must
dismiss the petition and direct the clerk to notify
28 U.S.C. § 2254 Rule 4.
Section 2254 states in relevant part that “[a]n
application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be
granted unless it appears that the applicant has exhausted the
remedies available in the courts of the State.” 28 U.S.C. §
2254(b)(1)(A). “An applicant shall not be deemed to have
exhausted the remedies available in the courts of the State,
within the meaning of this section, if he has the right under
the law of the State to raise, by any available procedure, the
question presented.” 28 U.S.C. § 2254(c).
It is clear from the face of the amended petition that
Petitioner has not exhausted his state court remedies. The
amended petition was filed before sentencing took place on
December 21, 2016, and Petitioner indicates an interlocutory
motion for leave to appeal is pending before the New Jersey
Supreme Court. Petition ¶ 15. Therefore, no further development
of the record is necessary to conclude Petitioner has not
exhausted his state court remedies because Petitioner had not
even been sentenced at the time of submission. The Court would
therefore not be able to grant his habeas petition in light of §
Furthermore, Petitioner raises a claim of ineffective
assistance of counsel. Such a claim would ordinarily be raised
first in a post-conviction relief (“PCR”) motion after the
conclusion of the direct appeal, if necessary.
For these reasons, the petition is subject to
dismissal as unexhausted on its face. In the interests of
justice and to ensure Petitioner’s rights are protected,
however, Petitioner may submit a detailed statement as to why
the Court should not dismiss the petition.
The fact that Petitioner appears to have been denied leave to
file an interlocutory appeal on some of his claims does not
satisfy the exhaustion requirement as Petitioner may still raise
those claims in his direct appeal now that the trial has
Petitioner should address in this statement whether he
or someone on his behalf has filed or intends to file a direct
appeal in the state courts.
An appropriate order follows.
April 6, 2017
/s Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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