United States District Court, D. New Jersey
BRIAN A. MOORE, Petitioner,
DAVID OWENS, et al., Respondents.
HONORABLE JEROME B. SIMANDLE, U.S. District Judge.
Petitioner filed a § 2254 petition on November 28, 2016.
Docket Entry 1. On December 1, 2016, the Court
administratively terminated the petition as it was not on the
proper form and Petitioner had not submitted the filing fee
or an application to proceed in forma pauperis. The
Court directed Petitioner to resubmit his petition within 30
Petitioner submitted his amended petition on December 12,
2016. Amended Petition, Docket Entry 11.
amended petition indicated that a Camden County jury
convicted Petitioner of 5 counts of human trafficking and 6
counts of promoting prostitution. Id. ¶ 5.
Sentencing was scheduled for December 21, 2016. Id.
reviewing the amended petition pursuant to Habeas Rule 4, the
Court concluded from the face of the amended petition that
Petitioner had not exhausted his state court remedies before
filing his § 2254 petition.
Court ordered Petitioner to show cause why the petition
should not be dismissed as unexhausted. Order to Show Cause,
Docket Entry 15.
Petitioner responded that he understood habeas corpus to be
available to pre-trial detainees after exhausting state court
remedies. He argued that he had “presented multiple
pre-trial motions before the Superior Court, two applications
for Leave to Appeal to the Appellate Division, and two
applications for Leave to Petition for Certification with the
Supreme Court of New Jersey.” Show Cause Response,
Docket Entry 16.
stated that he had since been sentenced and had filed a
direct appeal. Id. Attached to his response was a
judgment of conviction dated December 21, 2016.
Section 2254 states in relevant part that “[a]n
application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall
not be granted unless it appears that the applicant has
exhausted the remedies available in the courts of the
State.” 28 U.S.C. § 2254(b)(1)(A). “An
applicant shall not be deemed to have exhausted the remedies
available in the courts of the State, within the meaning of
this section, if he has the right under the law of the State
to raise, by any available procedure, the question
presented.” 28 U.S.C. § 2254(c).
previously noted by the Court, it is clear from the face of
the amended petition that Petitioner has not exhausted his
state court remedies before filing in federal court. The
original petition was filed before sentencing took place on
December 21, 2016.
Petitioner is correct in that the district courts have
jurisdiction to issue a writ of habeas corpus before a
criminal judgment is entered against an individual in state
court, but such petitions are brought under 28 U.S.C. §
2241, not § 2254. Moreover, 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
Fed.Appx. 3, 4 (3d Cir. 2010) (quoting Moore v. De
Young, 515 F.2d 437, 445-46 (3d Cir. 1975)).
Petitioner was weeks away from sentencing at the time he
filed his original petition, and federal habeas proceedings
should not be used to “permit the derailment of a
pending state proceeding by an attempt to litigate
constitutional defenses prematurely in federal court.”
Braden v. 30th Judicial Circuit Court of Kentucky,
410 U.S. 484, 493 (1973). Thus even if the petition had been
before the Court under § 2241, it would not have been
appropriate to exercise the Court's habeas jurisdiction
at that point in time.
§ 2254 petition is totally unexhausted on its face.
Petitioner is in the midst of his direct appeal, and he has
an ineffective assistance of counsel claim that will most
likely have to be raised in a post-conviction relief
(“PCR”) motion. See State v. Preciose,
609 A.2d 1280, 1286 (N.J. 1992) (“Generally, a claim of
ineffective assistance of counsel cannot be raised on direct
appeal.” (internal citation omitted)).
the petition is unexhausted, it must be dismissed. A stay
pending exhaustion is not warranted because Petitioner's
conviction is not yet final within the meaning of 28 U.S.C.
§ 2244(d)(1)(A), and the petition is not “mixed,