NYEMA v. STATE OF NEW JERSEY

Filing 13

OPINION filed. Signed by Judge Michael A. Shipp on 5/17/2013. (eaj)

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOSEPHUS T. Y. NYEMA, SR.,

Civil Action No. 12-7168 (MAS)
Petitioner,
v.

OPINION

STATE OF NEW JERSEY,
Respondent.

APPEARANCES:
JOSEPHUS T. Y. NYEMA, SR., Petitioner pro se
P.O. Box 582
Trenton, New Jersey 08604

SHIPP, District Judge
This matter is before the Court on the application of petitioner Josephus T. Y. Nyema,
Sr. ("Nyema") for habeas corpus relief under 28 U.S.c. § 224l. Because Nyema is challenging a
state court conviction, this Court will recharacterize the action as a habeas petition under 28
U.S.c. § 2254.

For the reasons set forth below, the petition must be dismissed for lack of

jurisdiction because Nyema does not meet the "in custody" requirement under either 28 U.S.C. §
2254(a) or § 2241 (c)(3).

1. BACKGROUND
Nyema is not presently confined at a state correctional facility. In fact, at the time he
filed this habeas petition, Nyema admittedly was no longer in the custody of the State of New
Jersey pursuant to the New Jersey state court conviction that he challenges in his habeas petition.
This is the third attempt by Nyema in challenging this particular state court conviction. He filed
1

similar habeas actions that were dismissed for lack of jurisdiction. See Nyema v. State of New

Jersey, Civil No. 09-69 (MLC); Nyema v. State ofNew Jersey, Civil No.1 0-2933 (MLC).
Nyema filed the present petition on or about November 13, 2012.

As in the earlier

habeas matters referenced above, Nyema again challenges his 2005 judgment of conviction
issued by the Superior Court of New Jersey, Mercer County. On August 26,2005, Nyema was
sentenced to a term of probation for three years. (Petition at ~~ 1-5.)

In his first habeas petition, Nyema v. State ofNew Jersey, Civil No. 09-69 (MLC), Nyema
admitted that he had appealed his August 2005 conviction to the Superior Court of New Jersey,
Appellate Division. On November 16, 2007, the Appellate Division affirmed his conviction.
The New Jersey Supreme Court denied certification on February 28, 2008.

He then filed a

petition for a writ of certiorari to the Supreme Court of the United States, which was denied on
October 6, 2008. (See Civil No. 09-69 (MLC) at Docket entry no. 1, ~~ 9, 12.)

In an Opinion and Order entered on August 3, 2009, the Honorable Mary L. Cooper,
U.S.DJ., dismissed Nyema's first habeas action, Nyema v. State ofNew Jersey, Civil No. 09-69
(MLC), for lack of jurisdiction because Nyema did not satisfy the "in custody" jurisdictional
requirement applicable to habeas actions under § 2254(a) and § 2241(c)(3), at the time he filed
his petition for habeas relief. (See Civil No. 09-69 (MLC) at Docket entry nos. 5 and 6.) On or
about November 28, 2011, Nyema filed a notice of appeal from Judge Cooper's decision with
the United States Court of Appeals for the Third Circuit, which by Order dated February 3, 2012,
dismissed Nyema's appeal for lack of appellate jurisdiction. (Id., Docket entry nos. 8 and 12,
respectively.)
On or about June 9, 2010, before Nyema filed his notice of appeal to the Third Circuit,
however, Nyema filed a second habeas action challenging his same 2005 New Jersey state court
2

judgment of conviction. (See Nyema v. State of New Jersey, Civil No. 10-2933 (MLC), Docket
entry no. 1.) In the second action, Nyema characterized his petition as a writ of error coram

nobis. (Jd.) Nyema filed an amended petition on July 12, 2010. (Id., Docket entry no . 2.)
Nyema stated that, on or about April 9, 2008, he had filed a pro se petition for post-conviction
relief ("PCR") in state court, alleging various claims of ineffective assistance of trial counsel.
The state PCR judge denied Nyema's PCR petition by Order dated September 30, 2009. (Jd.,
Docket entry no. 2,

~~

14-16.)

In an Opinion and Order entered on December 13, 2010, Judge Cooper dismissed
Nyema's second petition for lack of jurisdiction because Nyema did not satisfy the "in custody"
jurisdictional requirement applicable to habeas actions under § 2254(a) and § 2241(c)(3). (Jd.,
Docket entry nos . 5 and 6.) Moreover, Judge Cooper noted that the District Court lacked
jurisdiction to issue a writ of error coram nobis in Nyema's case because "coram nobis is not
available in a federal court as a means of attack on a state criminal judgment." (Jd., December
13,2010 Opinion, Docket entry no. 5, pg. 3 (citations omitted).) Nyema again appealed from the
dismissal order, and on January 26, 2012, the Third Circuit dismissed the appeal for lack of
appellate jurisdiction. (Jd., Docket entry nos. 8 and 11 , respectively.)
On January 24,2012 and November 9, 2012, Nyema sought to re-open his first habeas
action in Nyema v. State ofNew Jersey, Civil No. 09-69 (MLC), and he filed another petition for
habeas relief. (See Nyema v. State ofNew Jersey, Civil No . 09-69 (MLC), Docket entry nos. 11,
13 and 14.) In an Opinion and Order issued on November 13, 2012, Judge Cooper denied
Nyema's request to re-file and re-open his habeas action. (Jd., Docket entry nos. 15 and 16.) In
a letter request filed on November 28, 2012, Nyema again asked to re-open his case. Judge

3

Cooper denied the request in a Notice and Order dated November 28,2012. (Jd., Docket entry
nos. 17 and 18, respectively.)
Meanwhile, on or about November 13, 2012, despite several Orders from the District
Court and the Third Circuit dismissing Nyema's habeas applications, Nyema once again
submitted a petition for habeas relief, pursuant to 28 U.S.C. § 2241, challenging the same 2005
New Jersey state court conviction, long after his three-year probation tenn had expired in 2008 .
Nyema updated the status of his state court collateral review, attaching a partial Opinion from the
Appellate Division, decided January 25, 2012, which affinned the September 30,2009 denial of
Nyema's state PCR petition. He also attached a copy of an Order dated June 21,2012, in which
the Supreme Court of New Jersey denied certification on Nyema's appeal from denial of his state
PCR petition. (Docket entry no. 1.) It is plain from the face of the petition that Nyema is no
longer in the custody of the State of New Jersey pursuant to the judgment of conviction under
attack in this action.
II. STANDARDS FOR SUA SPONTE DISMISSAL
"Federal courts are authorized to dismiss summarily any habeas petition that appears
legally insufficient on its face." McFarland v. Scott, 512 U.S. 849, 856 (1994); Siers v. Ryan,
773 F.2d 37, 45 (3d Cir. 1985); Harrison v. Schultz, 285 Fed. Appx. 887, 889 (3d Cir. 2008).
Habeas Rule 4 requires a district court to examine a habeas petition prior to ordering an answer
and "[i]f 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 the petitioner."

28 U.S.c. § 2254, Habeas Rule 4, applicable through Rule l(b).

Dismissal without the filing of an answer or the State court record is warranted "if it appears on

4

the face of the petition that petitioner is not entitled to relief." Jd.; see also 28 U.S.C. § 2243;1

McFarland, 512 U.S. at 856; United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas
petition may be dismissed where "none of the grounds alleged in the petition would entitle [the
petitioner] to relief'); see also Lonchar v. Thomas, 517 U.S. 314,320 (1996).
Nyema brings his habeas petition as a pro se litigant. A pro se pleading is held to less
stringent standards than more formal pleadings drafted by lawyers. Estelle v. Gamble, 429 U.S.
97,106 (1976); Haines v. Kerner, 404 U.S. 519, 520 (1972). Thus, a pro se habeas petition and
any supporting submissions must be construed liberally and with a measure of tolerance. See

Royce v. Hahn, 151 F.3d 116,118 (3d Cir. 1998); Lewis v. Attorney General, 878 F.2d 714, 721­
22 (3d Cir. 1989).
III. ANALYSIS
Because Nyema is challenging a state court conviction, his action for habeas relief is
properly considered under 28 U.S.C. § 2254. Section 2254 provides:
(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.
28 U.S.C. § 2254(a)(emphasis added). While the "in custody" requirement is liberally construed
for purposes of habeas corpus, a petitioner must be in custody under the conviction he is
attacking when the petition is flied, in order for this Court to have jurisdiction. See Maleng v.

Cook, 490 U.S. 488, 490-92 (1989)(emphasis added).
Section 2243 provides:
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 .
5

No court has held that a habeas petitioner is in custody when a sentence imposed for a
particular conviction had fully expired at the time the petition was filed. Indeed, the Supreme
Court held that its decision in Carafas v. LaVallee, 391 U.S. 234 (1968) "strongly implies the
contrary." Maleng, 490 U.S. at 491. In Carafas, the Supreme Court noted that the unconditional
release of petitioner raised a 'substantial issue' as to whether the statutory 'in custody'
requirement was satisfied. Maleng, 490 U.S. at 491 (citing Carafas, 391 U.S. at 238). The
Court ultimately found the in custody requirement was satisfied in Carafas, not because of the
collateral consequences of a conviction, but due to the fact that petitioner had been in physical
custody pursuant to the challenged conviction at the time the petition was filed . Maleng, 490
U.S. at 492 (citing Carafas, 391 U.S. at 238) ; see also Lee v. Stickman, 357 F.3d 338, 342 (3d
Cir. 2004)("It is ... clear that being on probation meets the 'in custody' requirement for purposes
of the habeas statute."). Thus, the clear implication of the Supreme Court's holding is "that once
the sentence imposed for a conviction has completely expired, the collateral consequences of that
conviction are not themselves sufficient to render an individual 'in custody' for purposes of a
habeas attack upon it.,,2 Maleng, 490 U.S. at 492.
Here, it is evident that the state court conviction and sentence now challenged by Nyema
had fully expired before he filed for federal habeas relief. He was sentenced to a three year
probation term on August 26, 2005, which expired in August 2008. Nyema did not file this
habeas petition until November 13,2012. Thus, he is not entitled to relief under § 2254 and his
petition is subject to dismissal for lack ofjurisdiction.

Collateral consequences of a conviction include such things as the deprivation of the right to
vote, to hold public office, to serve on a jury, or to engage in certain businesses. See St. Pierre v.
United States, 319 U.S. 41 (1943).
2

6

A writ of error coram nobis has traditionally been used to attack convictions with
continuing consequences when the petitioner is no longer "in custody" for purposes of habeas
review. United States v. Baptiste, 223 F.3d 188, 189 (3d Cir. 2000). However, the writ of error

coram nobis is available in federal court only for those who were convicted in federal court. 28

u.s.c.

1651(a); Neyor v. IN.S., 155 F. Supp.2d 127, 136 (D.N.J. 2001). Consequently, the

Court cannot construe Nyema's petition as a writ of error coram nobis. Instead, petitioner's
only course for relief from the collateral consequences of his expired state conviction is to bring
a common law writ of error coram nobis, or a petition for post-conviction relief, in the state
court where he was convicted.
Finally, this Court cannot overlook the repetitious applications filed by Nyema with
respect to his 2005 state court conviction. The District Court and the Third Circuit have ruled
clearly and conclusively that federal habeas relief is unavailable to Nyema because he no longer
is "in custody" pursuant to the judgment of conviction that he is challenging. Moreover, the
District Court has explained repeatedly that Nyema's only recourse to challenge his state court
conviction is a writ of coram nobis in state court where the judgment of conviction was entered.
Yet, Nyema filed this third action seeking to challenge the very same state court conviction
where he has been plainly informed that no federal jurisdiction exists to do so. Thus, this Court
strongly cautions Nyema that future attempts to contest his 2005 state court conviction in this
federal District Court will be deemed as abuse of writ,3 and will be subject to sua sponte
dismissal and possible sanctions.

3
Nyema does not have carte blanch to abuse judicial process by resorting to repetitious habeas
applications, since such practices would qualify and be sanctioned as abuse of the writ. "The
concept of 'abuse of the writ' is founded on the equitable nature of habeas corpus .... Where a
prisoner ... engages in ... conduct that disentitles him to the relief he seeks, the federal court may

7

IV. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a proceeding under 28 U.S.C.
§ 2254. 28 U.S.C. § 2253(c)(l)(A); see also Gonzalez v. Thaler, _ U.S. _,132 S.Ct. 641,649,
181 L.Ed.2d 619 (2012). A certificate of appealability may issue "only 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,
1537 U.S. 322 (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 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).

dismiss the subsequent petition on the ground that the prisoner has abused the writ." Adderly v.
Zickefoose, 2011 WL 5513187, *3 (D.N.J. Nov. 9, 2011)(citations omitted), writ of mandamus
denied, In re Adderly, 453 Fed. Appx. 161 (3d Cir. 2011). The Third Circuit has clarified the
workings of the doctrine of abuse of writ as follows: "When a prisoner files multiple petitions
[seeking] relief [in the form of a writ], the abuse of the writ doctrine as set forth in 28 U.S.C. §
2244(a) may bar his claims: No circuit or district judge shall be required to entertain an
application for [another writ] to inquire into the detention of a person ... if it appears that the
[legal invalidity of the issue was already explained to the litigant] by a judge or court of the
United States on a prior application for a writ of habeas corpus .... " Furnari v. United States
Parole Comm'n, 531 F.3d 241 (3d Cir. 2008)(relying on Sanders v. United States, 373 U.S. 1,9
(1963)).
8

Here, jurists of reason would not find the Court's procedural disposition of this case
debatable. Accordingly, no certificate of appealability will issue.
CONCLUSION
Based upon the foregoing, the petition will be dismissed for failure to satisfy the "in
custody" requirement under either 28 U.S.C. § 22S4(a) or § 2241(c)(3).

No certificate of

appealability will issue. Further, Nyema's applications for appointment of counsel in this matter,
(Docket entry nos. 3 and 4), will be denied as moot. An appropriate Order accompanies this
Opinion.

Dated:

5jJ7jJOJ3

9