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).
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 ...