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Perez v. Schultz

October 13, 2009

EDWIN PEREZ, PETITIONER,
v.
WARDEN PAUL SCHULTZ, RESPONDENTS.



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

OPINION

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).

III. ANALYSIS

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 ...


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