OBADO v. UNITED STATES GOVERNMENT et al
OPINION. Signed by Judge Brian R. Martinotti on 4/27/2017. (seb)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 17-1943-BRM
UNITED STATES GOVERNMENT, et al.,
MARTINOTTI, DISTRICT JUDGE
Before this Court is the Amended Petition for a Writ of Habeas Corpus (“Amended
Petition”) of Petitioner Dennis Obado (“Petitioner”) brought pursuant to 28 U.S.C. § 2241 (ECF
No. 2.) and Petitioner’s application to proceed in forma pauperis. (ECF No. 2-1). Having reviewed
Petitioner’s application to proceed in forma pauperis and the accompanying affidavit, Petitioner’s
application to proceed in forma pauperis is GRANTED. Furthermore, pursuant to Rule 4 of the
Rules Governing § 2254 Cases, applicable to § 2241 through Rule 1(b), the Court is required to
screen the Amended Petition and determine whether it “plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to relief.” Based on the Court’s review of the
Amended Petition and attached exhibits, and for the reasons set forth below, the Amended Petition
is DISMISSED for lack of jurisdiction.
Petitioner currently resides with his mother in New Brunswick, New Jersey. He is not in
any form of detention or custody (Petition (ECF No. 1) at 1; ECF No. 2-1 at 5), and therefore does
not challenge custody in his Amended Petition. Rather, Petitioner seeks an order to prevent the
Government “from attempting to take custody of Petitioner.” (ECF No. 2 at 6.) While it is not
entirely clear from the Petition or Amended Petition why the Government would be seeking to
take Petitioner into custody, Petitioner alleges he is being investigated by the Government, that the
Government has not informed him of this investigation, and the ongoing investigation without
notice to Petitioner violates his rights. (Id. at 6-7.) Therefore, Petitioner is requesting an order: (1)
preventing the Government from taking him into custody; (2) preventing the Government from
conducting further surveillance of Petitioner; (3) preventing the Government from investigating
Petitioner; (4) suppressing all unlawful evidence; (5) “precluding the deleting, and pirating of
intellectual properties;” and (6) “dismissing with prejudice all [of the Government’s] alleged
investigations.” (Id.) To this Court’s knowledge, none of the alleged investigations have resulted
in Petitioner being charged, indicted, arrested, detained or incarcerated.
Under 28 U.S.C. § 2241(c), habeas relief may be extended to a prisoner only when he “is
in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. §
2241(c)(3). A federal court has jurisdiction over such a petition if the petitioner is “in custody”
and the custody is allegedly “in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490 U.S. 488, 490 (1989). Pursuant to Rule 4 of
the Rules Governing § 2254 Cases, applicable to §2241 petitions through Rule 1(b), this Court is
required to preliminarily review a petitioner’s habeas petition and determine whether it “plainly
appears from the petition and any attached exhibits that the petitioner is not entitled to relief.”
Under 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).
Petitioner seeks to use his Amended Petition to challenge an alleged investigation of
Petitioner conducted by the Government, which has not resulted in any formal charges,
indictments, arrests, detainment, probation, or incarceration. This Court, however, is without
jurisdiction to entertain such a claim in a habeas petition. See Maleng, 490 U.S. at 490-91 (holding
this Court only has jurisdiction to hear habeas petitions of those “in custody”).
As the Third Circuit has explained,
While the in custody requirement is liberally construed for purposes
of habeas corpus, for a federal court to have jurisdiction, a petitioner
must be in custody under the conviction he is attacking at the time
the habeas petition is filed. The meaning of custody has been
broadened so that it is no longer limited . . . to physical custody alone
but also applies where individuals are subject both to significant
restraints on liberty . . . which were not shared by the public
generally, along with some type of continuing governmental
Obado v. New Jersey, 328 F.3d 716, 717-18 (3d Cir. 2003) (citations omitted). Courts have held
that probation, parole, and detention pending immigration hearings constitute a sufficient restraint
on liberty to amount to custody, while restitution payments or fines alone do not constitute a
sufficient restraint on liberty. Id. (finding that “payment of restitution or a fine, absent more, is not
the sort of ‘significant restraint on liberty’ contemplated in the ‘custody’ requirement of the federal
habeas corpus statutes”); see also Leyva v. Williams; 504 F.3d 357, 362-63 (3d Cir. 2007) (stating
that an individual on probation is in custody for § 2241 purposes); Kolkevich v. Att’y Gen. of the
U.S., 501 F.3d 323, 334 n.6 (3d Cir. 2007) (stating that an individual subject to a final deportations
order is in custody for § 2241 purposes). “In making a custody determination, a court looks to the
date that the habeas petition was filed.” Barry v. Bergen Cty. Prob. Dep’t, 128 F.3d 152, 159 (3d
Here, Petitioner does not allege facts to suggest he was in custody in March 2017, when he
filed his initial petition, for § 2241 purposes. Petitioner’s sole allegation is that he is currently the
subject of a Government investigation. (See ECF No. 2 at 6-7.) Because Petitioner has not
sufficiently alleged that he is “in custody,” this Court lacks jurisdiction over his Amended Petition.
Accordingly, Petitioner’s Amended Petition is DISMISSED WITHOUT PREJUDICE.
For the reasons set forth above, Petitioner’s application to proceed in forma pauperis (ECF
No. 2-1) is GRANTED and his Amended Petition is DISMISSED WITHOUT PREJUDICE.
An appropriate order will follow.
Date: April 27, 2017
/s/Brian R. Martinotti____________
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
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