BROWN v. TOLERICO et al
OPINION. Signed by Judge Kevin McNulty on 3/3/2017. (ld, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 16-94 13 (KM)
WARDEN MICHAEL TOLERICO, et a!.,
KEVIN MCNULTY, U.S.D.J.
The petitioner, Steven Brown, is a pretrial detainee currently lodged at the Passaic
County Jail in Paterson, New Jersey. He is proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C.
§ 2241. Mr. Brown’s application to proceed informapauperis will
be granted. Mr. Brown has filed a motion for a temporary restraining order/preliminary
injunction as well as a motion for the appointment of counsel. For the following reasons, the
habeas petition will be summarily dismissed. The motions for a temporary restraining order,
preliminary injunction, and appointment of pro bono counsel will be denied.
Mr. Brown was convicted in 1999 of second-degree sexual assault in New Jersey. As part
of his sentence, he received community supervision for life. In 2012 and 2013, Mr. Brown was
arrested for violating the terms of his community supervision for life. He is in pretrial status on
In State court, Mr. Brown sought to dismiss the indictment against him arguing that his
community supervision for life violates the Double Jeopardy Clause of the Constitution. In
October, 2016, the state court denied that motion. In December, 2016, Mr. Brown tiled this
federal habeas petition, which also argues that imposition of community supervision for life
violates the Double Jeopardy Clause.
STANDARD FOR SUA SPONTE DISMISSAL
With respect to screening this habeas petition, 28 U.S.C.
2243 provides in relevant part:
A court, justice or judge entertaining an application for a writ of
habeas corpus shall forthwith award the writ or issue an order
directing the respondent to show cause why the writ should not be
granted, unless it appears from the application that the applicant or
person detained is not entitled thereto.
As petitioner is proceeding pro Se, his petition is held to less stringent standards than those
pleadings drafted by lawyers. See Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010) (“It is the
policy of the courts to give a liberal construction to pro se habeas petitions.”) (internal quotation
marks and citation omitted); United States v. Otero, 502 F.3d 331, 334 (3d Cir. 2007) (“we
construe pro se pleadings liberally.”) (citing Haines v. Kerner, 404 U.S. 519, 520, 92 S .Ct. 594,
30 LEd.2d 652 (1972)). Nevertheless, “a district court is authorized to dismiss a [habeasi
petition summarily when it plainly appears from the face of the petition and any exhibits annexed
to it that the petitioner is not entitled to relief in the district court[.]” Lonchar v. Thomas, 517
U.S. 314, 320 (1996).
As a pretrial detainee, Mr. Brown has properly brought this as a habeas action under 28
§ 2241. See Smith v.
Pennsylvania State Attorney Gen., No. 11—1813,2011 WL 6012976,
at *1 (M.D. Pa. Nov. 3, 2011) (holding that as a pretrial detainee, petitioner was not in custody
pursuant to a state court judgment and could not proceed under
§ 2241), report and recommendation adopted
§ 2254, but could proceed under
2011 WL 6012933 (M.D. Pa. Dec.1, 2011); Avila
New Jersey, No. 07—3387, 2007 WL 2682937, at *4 n.4 (D.N.J. Sept.6, 2007). Federal courts
have jurisdiction under 28 U.S.C.
to issue a writ of habeas corpus before a state court
criminal judgment is entered against the petitioner. See Moore v. De Young, 515 F.2d 437, 441—
42 (3d Cir. 1975); see also Duran v. Thomas, 393 F. App’x 3, 4 (3d Cir. 2010) (“[S]ection 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.”) (internal
quotation marks and citations omitted). The United States Court of Appeals for the Third Circuit
has summarized the stringent prerequisites for such pretrial relief thus:
(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 arid has exhausted state remedies.
Moore, 515 F.2d at 443; see also Johnston v. Artis, No. 13—6947, 2013 WL 6095877, at *2
(D.N.J. Nov. 19, 2013); Wiggins v. Ellis, No. 10—1243, 2010 WL 3909873, at *2 (D.N.J. Oct. 1,
2010). In Moore, the Third Circuit noted that delay, harassment, bad faith, or other intentional
activity might constitute an extraordinary circumstance justifying federal court intervention
before trial. 515 F.2d at 447 n.12.
Petitioner requests that this Court grant him pretrial habeas relief from criminal charges
related to his alleged violation of conditions of his community supervision. He claims that
community supervision for life, or prosecution of him for violation of such community
supervision conditions, violates the Double Jeopardy Clause.
It does not appear that Mr. Brown has exhausted his state court remedies challenging his
community supervision for life on constitutional grounds. There is no basis for this Court to
intervene in his state criminal proceedings at this time. This action appears to be an attempt by
Mr. Brown to prematurely litigate in federal court constitutional defenses which are fully
available for assertion in the State case. Mr. Brown has failed to establish extraordinary
circumstances that would justify habeas intervention. See Duran, 393 F. App’x at 4 (citing
Ivloore, 515 F.2d at 445). Such circumstances might include delay, harassment, bad faith, or
other intentional activity, but nothing of the kind is alleged. See Moore, 515 F.2d at 447 n.12.
The proper procedure is for petitioner to exhaust his constitutional claims before all levels of the
New Jersey state courts, and to bring a habeas petition if and when such claims are denied.’
MOTION FOR TEMPORARY RESTRAINING ORDER/PRELIMINARY
Mr. Brown has also filed a motion for a TRO/preliminary injunction. To secure the
extraordinary relief of a preliminary injunction or a temporary restraining order (“TRO”), a
plaintiff must demonstrate that “‘(1) he is likely to succeed on the merits; (2) denial will result in
irreparable harm; (3) granting the injunction will not result in irreparable harm to the defendants;
and (4) granting the injunction is in the public interest.” Barber v. Sharp, No. 10—5286, 2011
WL 2223651, at *15 (D.N.J. June 2, 2011) (citing Maldonaldo v. Houston, 157 F.3d 179, 184
(3d Cir.1998) (as to preliminary injunction); Balias v. Tedesco, 41 F.Supp.2d 531, 537
(D.N.J.1999) (as to TRO)). A preliminary injunction grants ‘intermediate relief of the same
character as that which may be granted finally.” De Beers v. Consol. Mines v. United Stales, 325
U.S. 212, 220 (1945). A plaintiff “must establish that all four factors favor preliminary relief.”
It appears that Mr. Brown, rather than await the outcome of the criminal case, could have
sought leave to file an interlocutory appeal. See State i’. Nemes, 963 A.2d 847, 848 (N.J. Sup. Ct.
App. Div. 2008). He states that the public defender’s office would not file an interlocutory
appeal on his behalf.
Barber, 2011 WL 2223651, at
15 (citing Opticians Ass’n ojAm. v. indep. Opticians ojAm.,
920 F.2d 187 (3d Cir. 1990)).
Mr. Brown’s motion for a TRO/preliminary injunction will be denied. As indicated
above, Mr. Brown failed to exhaust his state court remedies such that his habeas petition is being
dismissed. He has failed to failed to demonstrate the extraordinary circumstances required to
justify the court’s intervention in ongoing state proceedings.
In addition, I do not find in the petitioner’s papers a substantial showing of likelihood of
success on the merits of his claim that a prosecution for a post-conviction violation of conditions
of supervision violates due process or double jeopardy standards.
It follows that his motion for a TRO/preliminary injunction must be denied.
MOTION FOR APPOINTMENT OF PRO BONO COUNSEL
Mr. Brown has also filed a motion for the appointment of pro bono counsel. There is no
right to counsel in habeas proceedings. See Reese v. Fulcorner, 946 F.2d 247, 263 (3d Cir. 1991),
superseded on other grounds by statute, 28 U.S.C.
§ 2254. However, 18 U.S.C. §
3006A(a)(2)(B) provides that the court has discretion to appoint counsel where “the court
determines that the interests ofjustice so require
In Reese, the Third Circuit explained that in
determining whether counsel should be appointed, a court “must first decide if petitioner has
presented a nonfrivolous claim and if the appointment of counsel will benefit the petitioner and
the court. Factors influencing a court’s decision include the complexity of the factual and legal
issues in the case, as well as the pro se petitioner’s ability to investigate facts and present claims.”
Reese, 946 F.2d at 263-64.
The appointment of counsel is not warranted in this case. As described above, petitioner’s
habeas petition is being dismissed because he failed to exhaust his state court remedies.
For the foregoing reasons, Mr. Brown’s habeas petition will be summarily dismissed for
failure to exhaust his state court remedies. Additionally, Mr. Brown’s application for a
TRO/preliminary injunction as well as his motion for the appointment of pro bono counsel will
be denied. An appropriate order will be entered.
DATED: March 3, 2017
KE N MCNUL Y
United States District Judge
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