United States District Court, D. New Jersey
Huertas, Petitioner pro se.
B. SIMANDLE U.S. DISTRICT JUDGE.
Victor Huertas filed a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241. Petition, Docket Entry 1.
For the reasons expressed below, the petition is dismissed
December 28, 2016, Petitioner attempted to avoid an accident
by driving on the shoulder of Route 38 in Cherry Hill, New
Jersey for a brief period of time. Petition ¶
5. He was subsequently pulled over by a Cherry Hill police
officer. Id. ¶ 7. The officer asked for
Petitioner's identification, registration, and insurance
information, which Petitioner provided. Id.
¶¶ 8-9. Shortly thereafter, the officer asked
Petitioner to step out of his vehicle. Id. ¶
10. The officer claimed in a later state court proceeding
that he smelled marijuana in Petitioner's car and he
discovered Petitioner had a criminal record. Id. The
officer proceeded to search Petitioner and the inside of the
car, but did not find any contraband. Id. ¶ 11.
The officer then searched the trunk and found narcotics
(heroin) and guns. Id. ¶ 12. Petitioner was
arrested. No. marijuana was recovered. Id. ¶
filed this habeas petition on September 19, 2017. The Court
originally administratively terminated the petition on
September 28, 2017 as Petitioner had not paid the filing fee
or submitted a complete in forma pauperis
application. Docket Entry 2. Petitioner submitted an in
forma pauperis application, and the Court granted the
application. Docket Entries 3 & 4.
argues his confinement is unconstitutional due to the
illegality of the search of the vehicle and seizure of the
narcotics and guns. He asserts the seized evidence is the
fruit of the poisonous tree, but a state court judge denied
his motion to suppress the evidence. He argues he should be
released from incarceration.
STANDARD OF REVIEW
brings this petition for a writ of habeas corpus as a pro se
litigant. The Court has an obligation to liberally construe
pro se pleadings and to hold them to less stringent standards
than more formal pleadings drafted by lawyers. Erickson
v. Pardus, 551 U.S. 89, 94 (2007); Higgs v. Attorney
Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011),
as amended (Sept. 19, 2011) (citing Estelle v.
Gamble, 429 U.S. 97, 106 (1976)). A pro se habeas
petition and any supporting submissions must be construed
liberally and with a measure of tolerance. Nevertheless, a
federal district court must dismiss a habeas corpus petition
if it appears from the face of the petition that Petitioner
is not entitled to relief. 28 U.S.C. § 2254 Rule 4 (made
applicable through Rule 1(b)); see also McFarland v.
Scott, 512 U.S. 849, 856 (1994); Siers v. Ryan,
773 F.2d 37, 45 (3d Cir. 1985), cert. denied, 490
U.S. 1025 (1989).
courts have jurisdiction under 28 U.S.C. § 2241 to issue
a writ of habeas corpus before a criminal judgment is entered
against an individual in state court, see Moore v. De
Young, 515 F.2d 437, 441-42 (3d Cir. 1975), but
“that jurisdiction must be exercised sparingly in order
to prevent in the ordinary circumstance ‘pre-trial
habeas interference by federal courts in the normal
functioning of state criminal processes.'”
Duran v. Thomas, 393 F. App'x 3, 4 (3d Cir.
2010) (quoting Moore, 515 F.3d at 445-46).
“The district court should exercise its
‘pre-trial' habeas jurisdiction only if petitioner
makes a special showing of the need for such adjudication and
has exhausted state remedies.” Moore, 515 F.2d
filed this petition before entry of a judgment; however, on
December 27, 2017 Petitioner informed the Court that he was
now incarcerated in Bayside State Prison. Notice of Change of
Address, Docket Entry 5. The Court takes judicial notice of a
public record, Petitioner's entry on the New Jersey
Department of Correction's Inmate Search, indicating that
he was sentenced on November 17, 2017 for an offense dated
December 28, 2016. See Inmate Search, available
(last visited Mar. 13, 2018). December 28, 2016 is the date
Petitioner states he was arrested by the Cherry Hill police.
Petition ¶ 4(a). It would therefore appear Petitioner
has been convicted and sentenced for the offense stemming
from the allegedly unlawful search. Petitioner would
therefore need to challenge this conviction under 28 U.S.C.
§ 2254 after he has exhausted his state court remedies.
Petitioner were a pre-trial detainee, the Court would still
decline to exercise habeas jurisdiction because he has not
exhausted his state court remedies. “‘[T]he
practice of exercising [federal habeas] power before the
question has been raised or determined in the state court is
one which ought not to be encouraged.'”
Moore, 515 F.2d at 442 (quoting Cook v.
Hart, 146 U.S. 183, 195 (1892)). The state courts are
equally responsible for “protecting the accused in the
enjoyment of his [federal] constitutional rights, ” and
“comity demands that the state courts, under whose
process he is held . . . should be appealed to in the first
instance.” Id. at 442-43 (internal quotation
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