The opinion of the court was delivered by: Hillman, District Judge
This matter is before the court pursuant to a petition for a writ of habeas corpus under 28 U.S.C. § 2254, filed by petitioner Michael C. Burns ("Burns"), on or about October 2, 2009. For the reasons set forth in this Opinions at Section II.B., infra, the Court will construe this petition as a pretrial writ of habeas corpus under 28 U.S.C. § 2241(c)(3). The sole respondent is the Warden, Eric Taylor, of the Camden County Correctional Facility.
According to the allegations contained in the petition, Burns alleges that he has been confined at the Camden County Correctional Facility ("CCCF"), in lieu of bail on Warrant #2009-106-0418, since July 15, 2009. (Petition at ¶¶ 1-3). He claims that he has not been given a probable cause hearing, or any other preliminary hearing with the exception of a bail motion. (Pet., ¶¶ 4-5). Burns states that, on July 25, 2009 and September 8, 2009, he "put forth a demand for probable cause hearing", which has gone unanswered. (Pet., ¶¶ 6-7). On August 29, 2009, Burns had filed a motion in state court to proceed as a pro se litigant. On September 10, 2009, Burns was informed by the Public Defender's Office that his motion to proceed pro se would not be heard until Burns was indicted. (Pet., ¶¶ 8-9).
Burns argues that he has no other recourse to have a probable cause hearing. He asks this Court to "hold a preliminary hearing," and release petitioner from custody. Construing the petition liberally for petitioner, it would appear that Burns is asserting that (a) he was denied due process, and that (b) he was denied his right to a speedy trial, with respect to the alleged delay by the state criminal court in holding a probable cause hearing.
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.
Burns 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).
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 § 8.1 (4th ed.2001).
Addressing whether a federal court should ever grant a pretrial writ of habeas corpus to a state prisoner, the United States Court of ...