COLBRY et al v. PIER et al

Filing 25

MEMORANDUM OPINION filed. Signed by Judge Brian R. Martinotti on 11/17/2017. (km)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BRIAN COLBRY, et al.,

Civil Action No. 17-003-BRM

Petitioners,
MEMORANDUM OPINION
v.
LISA VON PIER, et al.,
Respondents.

MARTINOTTI, DISTRICT JUDGE
Before this Court is the Third Circuit’s order remanding Petitioners Brian and Stephanie
Colbry’s (“Petitioners”) appeal of the dismissal of their habeas petition (the “Petition”)—brought
on behalf of A.L., a minor child related to both Petitioners—for lack of jurisdiction for the purpose
of determining whether a certificate of appealability should issue. (ECF No. 24.) For the reasons
set forth below, a certificate of appealability is DENIED.
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). Additionally:
When the district court denies a habeas petition on procedural
grounds without reaching the prisoner’s underlying constitutional
claim, a [certificate of appealability] 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

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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).
As explained in both this Court’s opinion dismissing the Petition (ECF No. 4) and the
opinion denying Petitioners’ motion for reconsideration (ECF No. 19), this Court lacks jurisdiction
over the Petition insomuch as A.L. was not “in custody” at the time Petitioners’ filed their Petition.
See Lehman v. Lycoming Cty. Children’s Servs. Agency, 458 U.S. 502, 508-12 (1982); Amerson v.
State of Iowa, Dep’t of Human Servs., 59 F.3d 92, 94 (8th Cir. 1995); see also Maleng v. Cook,
490 U.S. 488, 490-91 (1989); Obado v. New Jersey, 328 F.3d 716, 717 (3d Cir. 2003); Young v.
Vaughn, 83 F.3d 72, 73 (3d Cir. 1996). Because jurists of reason would not dispute this Court was
correct in finding a lack of jurisdiction over the Petition as A.L. was not “in custody” at the time
it was filed, the Petition does not deserve encouragement to proceed further. A certificate of
appealability is therefore DENIED. An appropriate order will follow.

Date: November 17, 2017

/s/ Brian R. Martinotti_________________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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