The opinion of the court was delivered by: Debevoise, District Judge
This matter is before the Court on the application of petitioner Stephen Beightler ("Beightler") for a writ of error coram nobis pursuant to the All Writs Act, 28 U.S.C. § 1651. Because Beightler is challenging a state court conviction, this Court will recharacterize the action as a habeas petition under 28 U.S.C. § 2254. For the reasons set forth below, the petition must be dismissed for lack of jurisdiction because Beightler does not meet the "in custody" requirement under 28 U.S.C. § 2254(a).
Beightler is not presently confined at a state correctional facility. In fact, at the time he filed this habeas petition, Beightler admittedly was no longer in the custody of the State of New Jersey pursuant to the New Jersey state court conviction that he challenges in his habeas petition.
Beightler filed this petition on or about July 7, 2010. He challenges a judgment of conviction entered by the Superior Court of New Jersey, Law Division, Essex County, on August 22, 2007, for unlawful possession of a firearm. He was sentenced to a one year probationary term with nominal fees as a result of a plea bargain where Beightler pled guilty. It appears that Beightler filed a direct appeal from his sentence and conviction, and the Supreme Court of New Jersey denied his petition for a writ of certiorari on January 28, 2010.
At the time he submitted this petition for filing, Beightler's one-year probation term had expired. Consequently, Beightler is no longer in the custody of the State of New Jersey pursuant to a judgment of conviction.
II. STANDARDS FOR SUA SPONTE DISMISSAL
United States Code Title 28, 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.
Beightler 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). Nevertheless, a federal district court can dismiss a habeas petition if it appears from the face of the application that the petitioner is not entitled to relief. See Lonchar v. Thomas, 517 U.S. 314, 320 (1996); Siers v. Ryan, 773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
Because Beightler is challenging a state court conviction, his action for habeas relief is properly considered 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 ...