The opinion of the court was delivered by: Cooper, District Judge
The petitioner, Josephus T. Y. Nyema, Sr. ("Nyema"), seeks habeas corpus relief under 28 U.S.C. § 2241. Because Nyema is challenging a state court conviction, this Court will treat the matter as a habeas petition under 28 U.S.C. § 2254. For the reasons set forth below, the petition will be dismissed for lack of jurisdiction, as Nyema does not meet the "in custody" requirement under either 28 U.S.C. § 2254(a) or § 2241(c)(3).
Nyema is not currently confined at a state correctional facility. Nyema, when he filed this habeas petition, admittedly was no longer in the custody of the State of New Jersey pursuant to the New Jersey state court conviction that he challenges here.
Nyema filed this petition on or about December 30, 2008. He challenges a 2005 judgment of conviction purportedly issued by New Jersey Superior Court, Mercer County. On August 26, 2005, Nyema was sentenced to a term of probation for three years. (Petition at ¶¶ 1-5.)
Nyema states that he appealed his conviction to the New Jersey Appellate Division, which affirmed his conviction on November 16, 2007. The New Jersey Supreme Court denied certification on February 28, 2008. He then filed a petition for a writ of certiorari to the United States Supreme Court, which was denied on October 6, 2008. (Petition at ¶¶ 9, 12.)
At the time he submitted this petition for filing, on December 30, 2008, Nyema's three-year probation term had expired. Consequently, Nyema is no longer in the custody of the State of New Jersey pursuant to a judgment of conviction.
II. STANDARDS FOR SUA SPONTE DISMISSAL
Section 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.
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). 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. Att'y Gen., 878 F.2d 714, 721-22 (3d Cir. 1989). 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).
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 filed, in order for this Court to ...