ASSAAN v. DOW et al
Filing
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OPINION. Signed by Judge Susan D. Wigenton on 9/30/11. (dc, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
YUSEF TAALIB ASSAAN,
Petitioner,
v.
PAULA T. DOW, et al.,
Respondents.
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Hon. Susan D. Wigenton
Civil No. 11-5552 (SDW)
OPINION
APPEARANCES:
YUSEF TAALIB ASSAAN, #D-92398
Bergen County Jail
160 South River Street
Hackensack, NJ 07601
Petitioner Pro Se
WIGENTON, District Judge:
Petitioner Yusef Taalib Assaan filed a Petition for a Writ of Habeas Corpus challenging
his pretrial confinement at the Bergen County Jail pursuant to a state criminal prosecution. See
State v. Assan, Crim. No. 10-06-1039 order (N.J. Super. Ct., Law Div., Apr. 11, 2011) (Dkt. 1-3
at 2.) For the reasons expressed below, this Court will construe the Petition as seeking relief
pursuant to 28 U.S.C. § 2241, dismiss the Petition without prejudice to the filing of a petition
pursuant to 28 U.S.C. § 2254 after Petitioner exhausts remedies available in the courts of the
State of New Jersey, and deny a certificate of appealability.
I. BACKGROUND
Petitioner, who is incarcerated at Bergen County Jail in New Jersey on state criminal
charges, seeks release. He asserts the following facts. A grand jury in Bergen County, New
Jersey, returned an indictment charging him with endangering the welfare of children, child
abuse, and possession of a prohibited weapon. Petitioner filed a motion to dismiss the charges.
He alleges that
from January 31, 2011 until September 19, 2011, [he] was
threatened with forcible and forced abduction to participate
initially in an alleged COMPETENCY HEARING, which later was
re-classified by JUDGE DONALD R. VENEZIA as ‘forced
psychological evaluation’ and . . . JUDGE DONALD R.
VENEZIA, on APRIL 7, 2011, ENTERED A BOGUS and
Unconstitutional ORDER ‘MANDATING A PSYCHIATRIC
EVALUATION OF DEFENDANT’S FITNESS TO PROCEED
TO TRIAL AND OF DEFENDANT’S DANGEROUSNESS TO
SELF, OTHERS OR PROPERTY AS A RESULT OF MENTAL
ILLNESS (herein attached as petitioner’s exhibit A) . . .
[O]n SEPTEMBER 19, 2011, petitioner appeared at the BERGEN
COUNTY COURTHOUSE, at about 10:15 a.m. before JUDGE
DONALD R. VENEZIA, who promptly instructed the court
bailiffs to take petitioner into custody, to be forcefully evaluated
for mental illness and unfitness as he outlined in exhibit A, for
challenging the court’s jurisdiction; for invoking his Rights to be
Master of his own defense; for demanding that the true identity of
the alleged accuser be revealed to him as exculpatory material, and
due process as a matter of right, which the court JUDGE
DONALD R. VENEZIA and the Bergen County Prosecutor’s
office have forcefully prevented from happening and hence
petitioner is not being held indefinitely as a prisoner of war without
trial at the Bergen county jailhouse.
(Dkt. 1 at 4-5.)
Petitioner seeks an order reversing his forced detention, prohibiting his incarceration, and
immediately releasing him without the imposition of conditions or terms. (Dkt. 1-2.) Attached
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to the Petition is an order filed in the Superior Court of New Jersey, Law Division, Bergen
County, in New Jersey v. Assan, Ind. No. 10-06-1039 (N.J. Super. Ct., Law Div., Apr. 7, 2011),
stating that, having found cause to question defendant’s fitness to proceed to trial, Judge Venezia
ordered a psychiatric evaluation of defendant pursuant to N.J. Stat. Ann. § 2C:4-5A. (Dkt. 1-3.)
I. STANDARD OF REVIEW
“Habeas corpus petitions must meet heightened pleading requirements.” McFarland v.
Scott, 512 U.S. 849, 856 (1994). A petition is required to specify all the grounds for relief
available to the petitioner, state the facts supporting each ground, state the relief requested, and
be signed under penalty of perjury. See 28 U.S.C. § 2254 Rule 2(c), applicable to § 2241
petitions through Rule 1(b).
“Federal courts are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face.” McFarland, 512 U.S. at 856; Siers v. Ryan, 773 F.2d 37, 45 (3d
Cir. 1985), cert. denied, 490 U.S. 1025 (1989). Habeas Rule 4 accordingly requires the Court to
examine a petition prior to ordering an answer and, if it appears “that the petitioner is not entitled
to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the
petitioner.” 28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b).
III. DISCUSSION
A. Exhaustion
A district court has subject matter jurisdiction under 28 U.S.C. § 2241(c)(3) to entertain a
pretrial petition for habeas corpus brought by a person who is in custody pursuant to an untried
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state indictment.1 See Maleng v. Cook, 490 U.S. 488, 490 (1989); Braden v. 30th Judicial
Circuit Court of Kentucky, 410 U.S. 484 (1973); Mokone v. Fenton, 710 F.2d 998, 999 (3d Cir.
1983); Moore v. DeYoung, 515 F.2d 437, 442, 443 (3d Cir. 1975). This Court construes
Petitioner’s pretrial challenge to his detention as a Petition for Writ of Habeas Corpus pursuant to
28 U.S.C. § 2241.
While this Court has jurisdiction under 28 U.S.C. § 2241 to entertain this pretrial habeas
corpus Petition, it is clear that such relief should not be granted here because “federal habeas
corpus does not lie, absent ‘special circumstances,’ to adjudicate the merits of an affirmative
defense to a state criminal charge prior to a judgment of conviction by a state court.” Braden,
410 U.S. at 489 (quoting Ex parte Royall, 117 U.S. 241, 253 (1886)). Moreover, the doctrine of
Younger v. Harris, 401 U.S. 37 (1971), forbids federal court interference in pending state
criminal proceedings.2 As the Supreme Court explained over 100 years ago,
We are of the opinion that while the . . . court has the power to do
so, and may discharge the accused in advance of his trial if he is
restrained of his liberty in violation of the national constitution, it
is not bound in every case to exercise such a power immediately
upon application being made for the writ. We cannot suppose that
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Section 2241(c)(3) provides:
(c) The writ of habeas corpus shall not extend to a
prisoner unless– . . . He is in custody in violation of
the Constitution or laws or treaties of the United
States.
28 U.S.C. § 2241(c)(3).
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In Younger, the Supreme Court held that principles of equity and comity require district
courts to abstain from enjoining pending state criminal proceedings absent extraordinary
circumstances. See also Samuels v. Mackell, 401 U.S. 66, 69-73 (1971) (Younger abstention
doctrine applies to declaratory judgment actions).
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congress intended to compel those courts, by such means, to draw
to themselves, in the first instance, the control of all criminal
prosecutions commenced in state courts exercising authority within
the territorial limits, where the accused claims that he is held in
custody in violation of the constitution of the United States. The
injunction to hear the case summarily, and thereupon ‘to dispose of
the party as law and justice require,’ does not deprive the court of
discretion as to the time and mode in which it will exert the powers
conferred upon it. That discretion should be exercised in the light
of the relations existing, under our system of government, between
the judicial tribunals of the Union and of the states, and in
recognition of the fact that the public good requires that those
relations not be disturbed by unnecessary conflict between courts
equally bound to guard and protect rights secured by the
constitution.
Ex parte Royall, 117 U.S. at 251.
The proper procedure for Petitioner is to exhaust his constitutional claims before all three
levels of the New Jersey courts and, if he is unsuccessful, to thereafter present them to this Court
in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Moore, 515 F.2d at
449. As the Third Circuit observed in regard to a pretrial § 2241 petition asserting violation of
the right to a speedy trial,
Petitioner . . . will have an opportunity to raise his claimed denial
of the right to a speedy trial during his state trial and in any
subsequent appellate proceedings in the state courts. 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 constitutional rights without pre-trial
federal intervention in the orderly functioning of state criminal
processes.
Moore, 515 F.2d at 449; see also United States v. Castor, 937 F.2d 293, 296-297 (7th Cir. 1991);
Dickerson v. State of Louisiana, 816 F.2d 220, 225-227 (5th Cir. 1987); Atkins v. State of
Michigan, 644 F.2d 543, 545-547 (6th Cir. 1981); Carden v. State of Montana, 626 F.2d 82 (9th
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Cir. 1980). As exceptional circumstances of peculiar urgency do not exist in this case, Petitioner
is not entitled to a pretrial Writ of Habeas Corpus and this Court will dismiss the Petition. See
Duran v. Thomas, 393 Fed. App’x 3 (3d Cir. 2010).
B. Certificate of Appealability
This Court denies a certificate of appealability because Petitioner has not made “a
substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2). See
Miller-El v. Cockrell, 537 U.S. 322 (2003).
IV. CONCLUSION
Based on the foregoing, this Court will dismiss the Petition without prejudice and deny a
certificate of appealability.
s/Susan D. Wigenton
SUSAN D. WIGENTON, U.S.D.J.
Dated: September 30, 2011
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