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Hargis v. Cohen

May 18, 2010

MARLON D. HARGIS, JR., PETITIONER,
v.
CPT. COHEN, ET AL., RESPONDENTS.



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

OPINION

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 Marlon D. Hargis ("Hargis"), on or about February 9, 2010. The named respondents are Captain Cohen and the Attorney General of the State of New Jersey. Petitioner failed to pay the $5.00 filing fee, or submit a complete application to proceed in forma pauperis.*fn1

I. BACKGROUND

According to the allegations contained in the petition, Hargis alleges that he was arrested without probable cause on August 12, 2009.*fn2 Hargis claims that he did not receive a probable cause hearing.

Hargis also alleges that his bail was set at $500,000.00, which he claims is excessive because he is not a flight risk and because the crimes for which he is charged are second and third degree offenses.

Hargis does not allege that he has raised any of these claims in his pending state court criminal proceedings. He asks for his immediate release and dismissal of the state criminal charges.

II. ANALYSIS

A. Standards for a Sua Sponte Dismissal

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.

Hargis 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).

B. Jurisdictional Issue

Federal courts do have jurisdiction, under 28 U.S.C. § 2241, to issue a writ of habeas corpus before a judgment is entered in a state criminal proceeding. Moore v. DeYoung, 515 F.2d 437, 441-42 (3d Cir. 1975). Addressing whether a federal court should ever grant a pretrial writ of habeas corpus to a state prisoner, the United States Court of Appeals for the Third Circuit has held:

(1) federal courts have "pre-trial" habeas corpus jurisdiction;

(2) that jurisdiction without exhaustion should not be exercised at the pre-trial stage unless extraordinary ...


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