UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
October 13, 2009
EDWIN PEREZ, PETITIONER,
WARDEN PAUL SCHULTZ, RESPONDENTS.
The opinion of the court was delivered by: Martini, District Judge
This matter is before the Court on petitioner Edwin Perez's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he is challenging his 2001 New Jersey state court conviction. For reasons discussed below, it appears from review of the petition papers provided by petitioner that his § 2254 habeas petition is subject to dismissal for lack of "in custody" jurisdiction.
I. PROCEDURAL BACKGROUND
Petitioner, Edwin Perez ("Perez"), filed a petition for habeas corpus relief on or about August 26, 2009.*fn1 According to the allegations contained in his petition, Perez was convicted by guilty plea in 2001, in the Superior Court of New Jersey, Law Division, Hudson County, on one count of second degree conspiracy. All other counts were dismissed. He was sentenced to eight years in prison.*fn2 (Petition, ¶¶ 1-5).
Perez filed a direct appeal from his conviction and sentence to the Superior Court of New Jersey, Appellate Division. On December 1, 2005, the Appellate Division affirmed the conviction and sentence. The Supreme Court of New Jersey denied certification on April 21, 2008. The United States Supreme Court denied Perez's petition for certiorari on November 19, 2008 as time barred. (Pet., ¶ 9).
Perez states that he filed a petition for post-conviction relief ("PCR") in state court, which was denied on December 1, 2005. He filed an appeal to the New Jersey Appellate Division. Perez states that the Appellate Division denied his appeal on September 27, 2007. (Pet., ¶ 11).
Perez filed this federal habeas petition on August 26, 2009. At the time he filed this § 2254 petition, Perez was confined at the FCI Fairton, apparently on federal charges.
II. STANDARD OF REVIEW
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).
A. Petitioner Not "In Custody" Under 28 U.S.C. § 2254
Petitioner brings this action 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 have jurisdiction. See Maleng v. Cook, 490 U.S. 488, 490-92 (1989).
No court has held that a habeas petitioner is in custody when a sentence imposed for a particular conviction had fully expired at the time the petition was filed. Indeed, the Supreme Court held that its decision in Carafas v. LaVallee, 391 U.S. 234 (1968) "strongly implies the contrary." Maleng, 490 U.S. at 491. In Carafas, the Supreme Court noted that the unconditional release of petitioner raised a 'substantial issue' as to whether the statutory 'in custody' requirement was satisfied. Maleng, 490 U.S. at 491 (citing Carafas, 391 U.S. at 238). The Court ultimately found the in custody requirement was satisfied in Carafas, not because of the collateral consequences of a conviction, but due to the fact that petitioner had been in physical custody pursuant to the challenged conviction at the time the petition was filed. Maleng, 490 U.S. at 492 (citing Carafas, 391 U.S. at 238). Thus, the clear implication of the Supreme Court's holding is "that once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual 'in custody' for purposes of a habeas attack upon it."*fn3 Maleng, 490 U.S. at 492.
Here, it would appear from the face of the petition that the state court conviction and sentence now challenged by Perez have fully expired before he filed this petition for federal habeas relief. He was sentenced to a maximum eight year term on September 7, 2001, and the state court record shows that Perez was released from state custody on February 7, 2002. Moreover, it appears that Perez is now confined in a federal prison for a federal conviction. Thus, Perez may not be entitled to relief under § 2254 and his petition is subject to dismissal for lack of jurisdiction.
However, before this Court dismisses this petition for lack of "in custody" jurisdiction, an Order will be issued directing Perez to show cause in writing why his petition should not be dismissed for failure to satisfy the "in custody" requirement under 28 U.S.C. § 2254(a).
For the foregoing reasons, because this Court finds that the petition for a writ of habeas corpus under 28 U.S.C. § 2254 may be subject to dismissal for lack of "in custody" jurisdiction, the Court will order Perez to show cause in writing why his petition should not be dismissed for failure to satisfy the "in custody" requirement under 28 U.S.C. § 2254(a). An appropriate order follows.
WILLIAM J. MARTINI United States District Judge