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Aguilar v. Bondwaski


October 20, 2010


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


This matter is before the court pursuant to a petition for a writ of habeas corpus under 28 U.S.C. § 2241, filed by petitioner Dario Aguilar ("Aguilar"), on or about April 9, 2010. The named respondent is Warden Bondwaski. Petitioner failed to pay the $5.00 filing fee, or submit a complete application to proceed in forma pauperis.*fn1

For the reasons set forth below, this Court finds that habeas relief under § 2241 is unavailable, and this habeas action must be dismissed without prejudice.


According to the allegations contained in the petition, Aguilar states that he was arrested on April 22, 2009,*fn2 and is still awaiting for an indictment to be submitted under the New Jersey Court Rule 3:25-3. (Petition, ¶ 1). Aguilar contends that he is being unlawfully detained in violation of the Sixth Amendment of the United States Constitution. (Pet., ¶¶ 2, 4). He alleges that he has filed two motions for his release before the New Jersey state court. (Pet., ¶ 3).


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.

Aguilar 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 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 circumstances are present ... ;

(3) where there are no extraordinary circumstances and where petitioner seeks to litigate the merits of a constitutional defense to a state criminal charge, the district court should exercise its "pre-trial" habeas jurisdiction only if petitioner makes a special showing of the need for such adjudication and has exhausted state remedies.

Id. at 443.

Here, Aguilar seeks his release from custody. He admits that he has filed two motions in state court, and that his case has been sent to the Grand Jury for indictment, which allegedly has not yet occurred. Thus, it appears that petitioner's claim for release has not been exhausted in his state court proceedings.

Moreover, Aguilar does not allege any "extraordinary circumstances" that would justify intervention by a federal court at this time. See Moore, 515 F.2d at 445-46 (there is nothing in the nature of the speedy trial right that qualifies it as a per se "extraordinary circumstance"). As the Court of Appeals explained in Moore,

Petitioner ... will have an opportunity to raise his claimed denial of the right to a speedy trial during his state trial and in any subsequent appellate proceedings in the state courts. Once he has exhausted state court remedies, the federal courts will, of course, be open to him, if need be, to entertain any petition for habeas corpus relief which may be presented. These procedures amply serve to protect [Petitioner]'s constitutional rights without pre-trial federal intervention in the orderly functioning of state criminal processes.

Moore, 515 F.2d at 449; see also United States v. Castor, 937 F.2d 293, 296-97 (7th Cir.1991); Dickerson v. State of Louisiana, 816 F.2d 220, 225-27 (5th Cir.), cert. denied, 484 U.S. 956 (1987); Atkins v. State of Michigan, 644 F.2d 543, 545-47 (6th Cir.), cert. denied, 452 U.S. 964 (1981); Carden v. State of Montana, 626 F.2d 82 (9th Cir.), cert. denied, 449 U .S. 1014 (1980). See also Younger v. Harris, 401 U.S. 37 (1971)(constitutional challenges must be raised in pending state criminal cases; a federal court generally will not intercede to consider issues that plaintiffs have an opportunity to raise before the state court).*fn3

Aguilar admittedly has an opportunity to litigate his claim for release in state court, as he has alleged that he has filed two motions in state court. Therefore, because Aguilar has failed to exhaust these claims before the New Jersey state courts, and given the complete absence of any "exceptional circumstances" that would justify federal intervention in Aguilar's pending state proceedings, this Court finds that the petition must be dismissed without prejudice at this time.


For the foregoing reasons, the petition for habeas relief under 28 U.S.C. § 2241 will be dismissed without prejudice. This Court otherwise makes no determination as to the merits of petitioner's claims. An appropriate Order follows.

ROBERT B. KUGLER United States District Judge

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