ESTHER SALAS, District Judge.
This matter is before the Court on the application of Frank Boatswain ("Petitioner") for habeas corpus relief under 28 U.S.C. § 2254. (D.E. No. 1 ("Pet.")). For the reasons set forth below, the petition must be dismissed for lack of jurisdiction because Petitioner does not meet the "in custody" requirement under 28 U.S.C. § 2254(a).
Petitioner is not presently confined at a state correctional facility. ( See Pet. at 1). In fact, at the time he filed this habeas petition, Petitioner 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. ( See id. ).
In 2001, Petitioner was indicted and charged with theft by deception, a third degree offense, contrary to N.J.S.A. 2C:20-4. State v. Boatswain, No. A-3991-09T3, 2012 WL 1697051, at *1 (N.J.Super.Ct.App.Div. May 16, 2012). Petitioner pled guilty and, on October 4, 2002, was sentenced to a term of three years in state prison, with gap time credit of 334 days. Id. Thereafter, Petitioner was released from prison. Id.
In 2005, Petitioner was arrested and charged with conspiracy to commit mail fraud and aggravated identity theft in the Eastern District of New York for incidents which occurred in 2004-2005. United States v. Boatswain, No. 06-CR-32 (E.D.N.Y. 2005). During his sentencing on these charges, the New Jersey conviction challenged in the instant petition was included in Petitioner's criminal history category calculation. Boatswain v. United States, No. 10-CV-711 (E.D.N.Y. 2010). Petitioner is currently in federal custody serving the 134 month sentence he received from the Eastern District of New York. Id.
In the instant petition, Petitioner challenges his 2002 New Jersey conviction for theft by deception on the following grounds: (1) violation of his Sixth Amendment right to a speedy trial; and (2) "The New Jersey State Court was without jurisdiction to accept a plea." (Pet. at 6-8).
II. LEGAL STANDARD
"Federal courts are authorized to dismiss summarily any habeas petition that appears legally insufficient on its face." McFarland v. Scott, 512 U.S. 849, 856 (1994); see also Harrison v. Schultz, 285 F.App'x 887, 889 (3d Cir. 2008) ("A District Court is authorized to summarily dismiss a habeas corpus petition if it plainly appears from the face of the petition that the petitioner is not entitled to relief."). Habeas Rule 4 requires a district court to examine a habeas petition prior to ordering an answer and, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." 28 U.S.C. § 2254, Habeas Rule 4, applicable through Rule l(b). Dismissal without the filing of an answer or the state court record is warranted if it appears on the face of the petition that petitioner is not entitled to relief. See id.; see also 28 U.S.C. § 2243; McFarland, 512 U.S. at 856; United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000) (habeas petition may be summarily dismissed where "none of the grounds alleged in the petition would entitle [the petitioner] to relief").
Because Petitioner is challenging a state court conviction, his action for habeas relief is properly considered under 28 U.S.C. § 2254. Section 2254(a) provides in relevant part:
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.
Although the "in custody" requirement is liberally construed for purposes of habeas corpus, a petitioner must be in custody "under the conviction or sentence under attack at the time his petition is filed" in order for this Court to have jurisdiction. Maleng v. Cook, 490 U.S. 488, 490-91 (1989). Indeed, the Supreme Court has ruled as follows:
The question presented... is whether a habeas petitioner remains "in custody" under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any ...