THOMAS v. STATE OF NEW JERSEY

Filing 25

MEMORANDUM OPINION. Signed by Judge Susan D. Wigenton on 10/11/16. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THURMAN THOMAS,

Civil Action No. 16-1436 (SDW)

Petitioner,
v.

MEMORANDUM OPINION

THE STATE OF NEW JERSEY,
Respondent.

IT APPEARING THAT:
1. On or about March 14, 2016, Petitioner, Thurman Thomas, filed his original petition
for a writ of habeas corpus seeking to raise claims related to his ongoing state court criminal
proceedings pursuant to 28 U.S.C. § 2241. (ECF No. 1).
2. On April 8, 2016, this Court entered an order and opinion dismissing that petition and
denying Petitioner a certificate of appealability because Petitioner had neither exhausted his
claims in state court nor presented extraordinary circumstances and thus was attempting to
improperly pre-litigate his constitutional claims in this court via habeas before first presenting
them to the state courts. (ECF Nos. 5-6).
3. On June 15, 2016, Petitioner filed an amended habeas petition, this time purportedly
brought pursuant to 28 U.S.C. § 2254. (ECF No. 16). Petitioner’s amended petition raised
nearly identical claims to those raised in his original petition, and it remained clear that Petitioner
had not yet been convicted, had not exhausted his claims in state court, and had not presented
extraordinary circumstances.
4. On June 20, 2016, this Court therefore entered another Order and Opinion, again
construing Petitioner to be raising his claims pursuant to § 2241 rather than § 2254 because

Petitioner remained a pre-trial detainee, and once again dismissing the petition as Petitioner was
attempting to prematurely litigate his claims in this Court rather than first presenting them to all
three levels of the state courts without having presented any extraordinary circumstances which
would warrant hearing his claims absent exhaustion. (ECF Nos. 17-18). This Court also denied
Petitioner a certificate of appealability as to his amended petition. (Id.).
5. On September 30, 2016, Petitioner filed with this Court a letter in which he requests
that the Court “re-open” his previously dismissed habeas petitions. (ECF No. 22). Petitioner
thereafter filed a second amended habeas petition on or about October 6, 2016. (ECF No. 23). It
is not entirely clear from the letter and amended petition whether Petitioner has pled guilty to the
charged offense, though it appears this may be the case. (See ECF Nos. 22-23). From
Petitioner’s letter, it is possible that he is instead on the eve of trial. (ECF No. 22). In any event,
it is clear that Petitioner has not been sentenced if he has pled guilty, and thus is still not yet
subject to a final judgment of conviction, and his amended petition therefore arises under 28
U.S.C. § 2241.
6. Because Petitioner has filed an amended petition, this Court is required to screen his
petition pursuant to Rule 4 of the Rules Governing Section 2254 Cases, applicable to petitions
such as this one brought pursuant to 28 U.S.C. § 2241 through Rule 1(b), and determine whether
it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to
relief.” Pursuant to this rule, a district court is “authorized to dismiss summarily any habeas
petition that appears legally insufficient on its face.” McFarland v. Scott, 512 U.S. 849, 856
(1994).
7. As the Court has twice explained to Petitioner,
Section 2241 “authorizes a federal court to issue a writ of habeas
corpus to any pretrial detainee who ‘is in custody in violation of the

Constitution or laws or treaties of the United States,’” including
state pre-trial detainees. Duran v. Thomas, 393 F. App’x 3, 4 (3d
Cir. 2010) (quoting Moore v. DeYoung, 515 F.2d 437, 442 n. 5 (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.’” Id. (quoting Moore, 515 F.2d at 445-46).
Section 2241 may therefore not be used “to litigate constitutional
defenses prematurely in federal court.” Id. (quoting Moore, 515
F.2d at 445). The Third Circuit in Moore therefore held that
although federal district courts have jurisdiction to hear the habeas
challenges of state pre-trial detainees, “that jurisdiction without
exhaustion should not be exercised at the pre-trial stage unless
extraordinary circumstances are present.” 515 F.2d at 443. Thus,
where no exceptional circumstances are present and a petitioner
seeks to litigate the merits of a constitutional defense to a criminal
charge, “the district court should exercise its ‘pre-trial’ habeas
jurisdiction only if [the] petitioner makes a special showing of the
need for such adjudication and has exhausted state remedies” by
presenting his claim to the highest state court. Id.
Here, Petitioner is seeking to litigate his alleged
constitutional claims, including Brady claims, ineffective assistance
claims, speedy trial claims, and claims regarding a witness’s
identification, in this Court before raising them before the state
courts. Thus, it is clear that Petitioner is asking this Court to
prematurely review his constitutional defenses before exhausting
them by presenting them to all levels of the state court system.
Petitioner, however, has not presented any “exceptional”
circumstances which would warrant this Court hearing his claims
prior to exhaustion in so much as he offers little other than his
allegations that he is being “railroaded” by the police and
prosecutors to support his request for relief. Such claims are not
sufficient to establish the sort of “extraordinary circumstances”
required for review without exhaustion. See Moore, 515 F.2d at
446-47 (standard claims of constitutional violations, such as speedy
trial claims, do not make out extraordinary circumstances). As
Petitioner has not exhausted his claims, as his petition presents no
extraordinary circumstances sufficient to warrant this Court hearing
his claims without exhaustion, and as Petitioner in essence seeks to

prematurely litigate his constitutional claims in this Court without
first raising them in the state courts, this Court must dismiss the
petition without prejudice at this time. Duran, 383 F. Appx at 4;
Moore, 515 F.2d at 443-46.
(ECF No. 5 at 3-5; ECF No. 17 at 4-5).
8. Although Petitioner, in his new letter and amended petition, reasserts his prior claims
and insists that he has now exhausted, the documents he attaches to his letter and petition show
that he clearly has not – the Appellate Division Clerk’s Office did not file his attempted appeals
but instead told him he could either file a motion for an interlocutory appeal or wait until after
his judgment of conviction is entered to file an appeal. (Document 1 attached to ECF No. 22 at
5). Likewise, that Petitioner has reported his attorney to an attorney ethics board is immaterial,
the question here is whether Petitioner has presented his claims to all three levels of the New
Jersey Courts – the trial court, Appellate Division, and New Jersey Supreme Court, which he
clearly has not done. Although Petitioner asserts that this lawyer is not performing to his liking
and is therefore ineffective as counsel, and that there have been various Brady violations and
evidentiary errors in his case, Petitioner has presented no basis for this Court to hear that or any
of his claims at this time as Petitioner has neither exhausted his claims by raising them before all
three levels of the state court system nor presented any exceptional circumstances sufficient to
warrant this Court hearing his claims absent exhaustion (see ECF Nos. 5, 17), Petitioner’s bare
assertion that he is being railroaded notwithstanding. Moore, 515 F.2d at 446-47 (standard
constitutional claims, such as those presented here, do not make out extraordinary circumstances
sufficient to permit claims to proceed absent exhaustion).
9. As with his prior petitions, Petitioner’s current second amended petition is one more
attempt by Petitioner to prematurely litigate his constitutional claims and defenses in this Court
without first seeking to exhaust his claims through proper procedure in the state courts. Because

Petitioner has presented no facts which would amount to extraordinary circumstances sufficient
for this Court to hear his claims without exhaustion, see Duran, 383 F. Appx at 4; Moore, 515
F.2d at 443-46, this Court must once again dismiss Petitioner’s claims without prejudice at this
time. Because Petitioner has utterly failed to present any extraordinary circumstances, his claims
cannot be heard until such time as he has exhausted them by presenting his claims to all three
levels of the State court system through a direct appeal and/or a petition for post-conviction relief
in the event he has indeed pled guilty or been convicted and sentenced.1 Petitioner should
therefore refrain from refiling his habeas petition until such time as he has actually exhausted all
of his claims.
10. As this Court previously explained to Petitioner,
Although appeals from petitions brought pursuant to 28 U.S.C. §
2241 by federal prisoners do not require a certificate of
appealability, see, e.g., Day v. Nash, 191 F. App’x 137, 139 (3d Cir.
2006), because Petitioner is a state pre-trial detainee, he is required
to obtain a certificate of appealability to the extent that he wishes to
challenge this Court’s dismissal of his amended petition as his
habeas petition challenges his detention which “arises out of process
issued by a State court.” 28 U.S.C. § 2253(c)(1)(A); see also
Magano v. New Jersey, No. 08-758, 2008 WL 2345584, at *4 n. 3
(D.N.J. June 3, 2008). In a habeas proceeding, a certificate of
appealability may only be issued “if the applicant has made a
substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district
court's resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327 (2003). “When the district court denies a habeas petition
on procedural grounds without reaching the prisoner's underlying
constitutional claim, a COA should issue when the prisoner shows,
at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and
1

Even if Petitioner had been sentenced at this time, this Court would be required to dismiss his
petition without prejudice for failure to exhaust his claims. See, e.g., Mallory v. Bickell, 563 F.
App’x 212, 215 (3d Cir. 2014).

that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.” Slack v. McDaniel, 529
U.S. 473, 484 (2000).
(ECF No. 17 at 6-7). Because jurists of reason would not disagree with this Court’s conclusion
that Petitioner has neither exhausted his claims nor shown extraordinary circumstances to
warrant the hearing of his claims absent exhaustion, Petitioner has not shown that he has
presented a valid claim for the denial of a constitutional right at this time and his claims are not
adequate to deserve encouragement to proceed further. As such, Petitioner is once again denied
a certificate of appealability. Slack, 529 U.S. at 484.
11. In conclusion, Petitioner’s habeas petition must once again be dismissed without
prejudice, and Petitioner is again denied a certificate of appealability. An appropriate order
follows.

Dated: October 11, 2016

s/ Susan D. Wigenton
Hon. Susan D. Wigenton,
United States District Judge