SMITH v. STATE OF NEW JERSEY

Filing 4

OPINION. Signed by Judge Kevin McNulty on 1/15/2013. (ld, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JAMES SMITH,
Civil Action No.

12—7729

(KM)

Petitioner,
v.

:

MORANDUM OPINION

STATE OF’ NEW JERSEY,
Respondent.

APPEARANCES:
Petitioner p_ se
James Smith
125 Idalroy Trail
Hopatcong, New Jersey
McNULTY,

07843

District Judge

Petitioner James Smith,
matter,

a defendant in a state criminal

has filed in this Court a pleading entitled “Emergency

Motion for Injunction Relief and Temporary Restraining Order,”
asserting federal jurisdiction pursuant to the habeas corpus
statute,
U.S.C.

28 U.S.C.

§ 1983. Mr.

§ 2254,

and the civil rights statute,

42

Smith’s intent was made somewhat clearer by

his recent payment of the $5.00 filing fee for a habeas corpus
petition

(as opposed to the $350.00 filing fee for a civil

action)

The Court will treat this motion as a petition for a

.

writ of habeas corpus;

I include some additional discussion on

the assumption that Smith may intend to file a civil rights
action and that the filing fee obstacle could be overcome.

Habeas
This Court has the power,

whether inherently or by Rule,

to

review the petition and determine whether it is sufficient to
invoke the Court’s habeas jurisdiction. Rule 4,

Federal Rules

Governing Section 2254 Cases in the United States District
Courts.

To the extent that this action is a habeas petition,

must be dismissed.

It does not appear from the face of the

petition that Mr.

it

Smith is in custody or has exhausted state

remedies.

To avoid a pointless round of motion practice,

I will

not require the State to answer or move in response to the
petition at this time.

Instead,

I will administratively terminate

this action without prejudice to the filing of an amended
petition.

If Mr.

Smith wishes to do so,

he should submit an

amended habeas petition addressing those issues within forty-five
(45)

days.

It will be accepted without the need of a formal

motion to amend.

The following discussion is intended to guide

the petitioner in deciding whether and how to amend the habeas
petition.
Custody appears dubious.

Petitioner asserts that he is

presently the defendant in a criminal matter pending in the
Superior Court of New Jersey,
(Criminal)

.

Sussex County,

Law Division

From the context of the petition,

State matter has not yet gone to trial.

2

I gather that this

For example,

Petitioner

demands a 180-day postponement,
of Judge P.

copies of filings and the recusal

Conforti. The clear sense is that Petitioner believes

that various persons are mishandling or interfering with an
ongoing criminal case.

Thus,

although the Court cannot

definitively state whether the Petitioner is presently
incarcerated,

or in the power of state officials in a manner that

would otherwise satisfy the “custody” requirement of the habeas
statute,

that does not seem to be the case.’ see Jones v.
371 U.S.

236

(1963); Barry v.

128 F.3d 152,

160

(3d Cir.

Cunningham,
Dept.,

has been broadened so that,

Bergen County Prob.

1997) (“the meaning of “custody”

in the § 2254(a)

longer limited to physical custody.”)

.

context,

it is no

“Whether someone who is

not under physical constraint can be considered in custody
depends on the amount of restriction placed on his or her
individual liberty.” Harts v.
Cir.

State of md.,

1984) (citing Hensley v. Municipal Court,

(1973))

.

Thus,

for example,

732 F.2d 95,
411 U.S.

96

(7th

345

a convicted defendant free on his own

recognizance while execution of sentence was stayed was found to
be “in custody” within the meaning of 28 U.S.C.

§ 2254.

‘Section 2254 provides in relevant part:
(a) The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of
the United States.

3

The

Court emphasized that Hensley’s “freedom of movement rests in the
hands of state judicial officers, who may demand his presence at
any time and without a moment’s notice.
criminal offense.” Hensley,

411 U.S.

Disobedience is itself a

at 351.

If he amends his habeas petition, Mr.
facts that,

in his view,

Smith must state the

satisfy the custody requirement. Any

amended petition must also name as a Respondent the state
official who has Mr.

Smith in custody.

Rule 2,

Federal Rules

Governing Section 2254 Cases in the United States District
Courts.
There is another barrier to petitioner’s invocation of the
federal habeas statute. Assuming that he has a potential federal
remedy,

he must demonstrate that he has exhausted all state law

2
procedures for challenging the status of which he complains.
Hensley,

411 U.S.

at 353

.

(“Where a state defendant is released on

bail or on his own recognizance pending trial or pending appeal,
he must still contend with the requirements of the exhaustion
doctrine if he seeks habeas corpus relief in the federal

The
2 Habeas statute requires that an applicant for a writ of
habeas corpus must first exhaust “the remedies available in the
courts of the State,” or demonstrate that no such remedies are
available.
28 U.S.C. § 2254(b) (“An application for a writ
of habeas corpus in 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, or that there is either an absence of
available State corrective process or the existence of
circumstances rendering such process ineffective to protect the
rights of the prisoner.”)
4

courts.”)

.

“To exhaust his federal claim,

a petitioner must

fairly present it to the State court. O’Sullivan v.
U.S.

838,

848

(1999)

Boerckel,

526

(a person in state custody must properly

exhaust state remedies by fairly presenting his claims to a state
court.”)

.

As the case appears to be ongoing, Mr.

Smith must

explain in any amended petition how he has met this requirement.
The Court strongly recommends that any amended habeas
petition be filed using the form that the Clerk of the Court
maintains for that purpose.
Section 1983
Mr.

Smith also appears to seek injunctive relief pursuant to

the civil rights statute,
requests,

for example,

§ 1983. His petition

that various state officials be ordered to

comply with his demands,
temporarily halted.

42 U.S.C.

or that the state criminal proceeding be

Such a civil rights action is distinct and

separate from a habeas petition. A civil rights complaint,

like

any civil complaint, must ordinarily be accompanied by a $350.00
filing fee. Mr.
pauperis

Smith may,

(“IF’P”),

that is,

however,

apply to proceed j forma

to have the fee waived on oath that he

is impoverished and cannot afford to pay it.

The necessary IFP

application can be obtained from the Clerk of the Court.
The Court will not prejudge the matter.
guidance,

however,

For Petitioner’s

I state that the circumstances under which a

5

federal court would enjoin an ongoing state criminal proceeding
are rare.

.a,

e.g.,

Younger v.

Harris,

401 U.s.

37

(1971).

CONCLU5 ION

For the reasons set forth above,

the Clerk of the Court will

administratively terminate the Petition without prejudice.
Petitioner will be granted leave to reopen this habeas
action within 45 days,

by submitting an amended petition that

sets forth the facts which,

in petitioner’s view,

establish the

required elements of state custody and exhaustion of state
remedies.
An appropriate Order will be entered.

K
in McNulty
United States District J d e
Dated:

January 15,

2013

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