The opinion of the court was delivered by: Sheridan, District Judge
This matter is before the Court by application of petitioner Lall B. Ramnauth for a writ of error coram nobis pursuant to 28 U.S.C. § 1651(a). For reasons discussed below, the petition will be dismissed for lack of jurisdiction.
Petitioner, Lall B. Ramnauth, filed a petition for a writ of error coram nobis on or about April 14, 2012.*fn1 According to the allegations and attachments to his petition, Petitioner was convicted in the Superior Court of New Jersey, Salem County, on or about November 3, 1995, after entering a guilty plea on two counts of arson in the third degree, contrary to N.J.S.A. 2C:17-1b. He was sentenced to 60 days in jail and three years of probation. (Petition, pg. 3 and Exhibits B, C). Petitioner complains that he was ineffectively represented by counsel because counsel had advised Petitioner to plead guilty without discussing how that plea would affect Petitioner's immigration status. (Pet., pp.3, 4).
On December 22, 2010, removal proceedings were commenced against Petitioner based on his arson conviction. A removal order was issued on November 1, 2011, but Petitioner appealed. The Board of Immigration Appeals ("BIA") dismissed Petitioner's appeal on March 12, 2012. Petitioner apparently filed a petition in state court for post-conviction relief ("PCR") after his removal proceedings were commenced. On March 12, 2012, Petitioner's state PCR petition was denied because it was untimely filed, seventeen years after his state court judgment of conviction. Petitioner continues to appeal his removal order and the matter currently is pending in the United States Court of Appeals for the Third Circuit. (Pet., pg. 4 and Exs. D, E, F, G, H and I).
At the time that Petitioner filed this petition, he is in custody pursuant to the removal order. It is plain that Petitioner is no longer confined pursuant to the state court judgment of conviction that he now challenges, as his sentence of 60 days in jail and 3 years probation imposed in 1995 has long since expired.
II. STANDARDS FOR SUA SPONTE DISMISSAL
As Petitioner is seeking relief from a state court conviction, this application is best construed as a habeas petition for relief under 28 U.S.C. § 2254. 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.
Petitioner 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).
III. "IN CUSTODY" JURISDICTION
Because Petitioner 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 ...