United States District Court, D. New Jersey
Humberto Felipe Perez, Petitioner Pro se.
L. HILLMAN, U.S.D.J.
Jorge Humberto Felipe Perez, a prisoner presently
incarcerated at Southern State Correctional Facility in
Delmont, New Jersey, brings this action pursuant to 28 U.S.C.
§ 2241 to challenge his immigration hold/detainer. ECF
No. 1. For the reasons that follow, the Petition will be
dismissed without prejudice.
filed the Petition on January 9, 2018, and paid the requisite
$5.00 filing fee on January 12, 2018. ECF No. 1. In the
Petition, Petitioner explains that he is presently serving a
state sentence imposed by the Superior Court of New Jersey on
October 13, 2017. ECF No. 1, Pet. at 1. He also states that
an immigration hold has been lodged against him. See
id. The Petitioner seeks to challenge his immigration
hold/detainer and invoke his “rights to a quick and
speedy trial.” Id. at 2, 5, 6. The Petitioner
seeks the following relief from the Court: “To take me
into Federal Custody and proceed with any and all DHS
Immigration cases.” Id. at 8.
corpus petitions must meet heightened pleading
requirements.” McFarland v. Scott, 512 U.S.
849, 856 (1994). Although the petitions of pro se
litigants are held to less stringent standards than those
pleadings drafted by lawyers, see Rainey v. Varner,
603 F.3d 189, 198 (3d Cir. 2010), the habeas petition must
“specify all the grounds for relief available to the
petitioner, “state the facts supporting each ground,
” “state the relief requested, ” be
printed, typewritten, or legibly handwritten, and be signed
under penalty of perjury. 28 U.S.C. § 2254, Rule 2(c)
(applicable to § 2241 petitions pursuant to Rule 1(b)).
Rule 4 requires a judge to sua sponte dismiss a
habeas petition without ordering a responsive pleading
“[i]f it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court.” 28 U.S.C. § 2254,
Rule 4 (applicable to § 2241 petitions through Rule
1(b)). See also 28 U.S.C. § 2243 (“A
court . . . shall forthwith . . . 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 . . . is not entitled thereto.”). “[A]
district court is authorized to dismiss a [habeas] petition
summarily when it plainly appears from the face of the
petition and any exhibits annexed to it that the petitioner
is not entitled to relief in the district court.”
Lonchar v. Thomas, 517 U.S. 314, 320 (1996). See
McFarland, 512 U.S. at 856 (“Federal courts are
authorized to dismiss summarily any habeas petition that
appears legally insufficient on its face.”).
Petition must be summarily dismissed without prejudice
because Petitioner has failed to allege the ”in
custody” jurisdictional requirement of § 2241
habeas petitions. In order to obtain habeas jurisdiction, the
Petitioner must allege that he is “in custody”
pursuant to 28 U.S.C. § 2241(c)(3):
The writ of habeas corpus shall not extend to a prisoner
. . .
He is in custody in violation of the Constitution or laws or
treaties of the United States.
28 U.S.C. § 2241(c)(3). The district court only has
subject-matter jurisdiction under § 2241(c)(3) if both
the “in custody” and “in violation of the
Constitution or laws or treaties of the United States”
requirements are met. Maleng v. Cook, 490 U.S. 488,
490 (1989). “Custody is measured as of the time that