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Clary v. State

December 20, 2007

THOMAS CLARY, PETITIONER,
v.
STATE OF NEW JERSEY, RESPONDENT.



The opinion of the court was delivered by: Simandle, District Judge

OPINION

This matter is before the Court on petitioner Thomas Clary's petition for habeas corpus relief under 28 U.S.C. § 2241(c)(3). For the reasons set forth below, the petition will be dismissed without prejudice.

I. BACKGROUND

According to the allegations contained in the petition, petitioner, Thomas Clary ("Clary"), is presently confined at the Camden County Correctional Facility in Camden, New Jersey, awaiting adjudication of state criminal charges against him. (Petition at ¶¶ 1, 2, 3, 7 and 9). Clary has been charged with possession of a firearm, eluding, aggravated assault, and fleeing from a stolen motor vehicle. (Petition at ¶ 5). He admits that there has been no judgment of conviction or sentence imposed, and that he has been detained for two months awaiting trial. (Petition at ¶¶ 1-3).

Clary alleges that he has been denied his right to a speedy trial, and that he has not been given an opportunity to be heard in violation of his right to due process. He claims that he has filed motions and other demands in state court to no avail. Clary also states that his first appearance was involuntarily waived by the state court, in violation of New Jersey state law. In addition to his claims of U.S. and state constitutional violations, Clary also asserts that his incarceration violates international law under the "International Covenant on Civil & Political Rights," the "Convention Against Torture," the "International Convention on the Elimination of All Forms of Racial Discrimination," and the "Universal Declaration of Human Rights." (Petition, ¶ 13, Ground C). Clary further states that the state allegations are "against the 'strawman' Thomas Clary" and not the human Thomas Clary. (Id.).

In his memorandum of law, Clary alleges ineffective assistance of counsel, a denial of his right to a probable cause hearing with respect to his warrantless search and seizure, and violations of the Uniform Commercial Code. It appears from the petition that Clary is asking to be released from jail and to have his state court charges dismissed.

II. ANALYSIS

A. Standards for Sua Sponte Dismissal

United States Code Title 28, Section 2243 provides in relevant part as follows:

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.

Clary 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). 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); United States v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399 U.S. 912 (1970). Nevertheless, a federal district court can dismiss a habeas petition if it appears from the face of the application that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).

B. Jurisdiction

Jurisdiction to issue a writ of habeas corpus before a judgment of conviction is rendered in a state criminal proceeding lies under 28 U.S.C. § 2241(c)(3). See Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973); Moore v. DeYoung, 515 F.2d 437, 442, 443 (3d Cir. 1975). To invoke habeas corpus review under § 2241, the petitioner must satisfy two jurisdictional requirements: (1) the status requirement that the person be "in custody," and (2) the substance requirement that the petition challenge the legality of that custody on the ground that it is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see also Maleng v. Cook, 490 U.S. 488, 490 (1989); 1 James S. Liebman & Randy Hertz, Federal Habeas Corpus Practice and Procedure ยง 8.1 (4th ed. 2001). Although Clary may be sufficiently "in custody" at this time to attack the New Jersey ...


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