NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

EARL BARLEY, :

10-6426 (JBS)

Petitioner, :

v. : OPINION

WARDEN JOSEPH BONDISKEY, :

Respondent. :

APPEARANCES:

Petitioner pro se

Earl Bailey

#189665

Atlantic County Justice Facility

5060 Atlantic Avenue

Mays Landing, NJ 08330

SIMANDLE, District Judge

Petitioner Earl Bailey, a pre-trial detainee currently

confined at the Atlantic County Justice Facility in Mays Landing,

New Jersey, has submitted a petition for a writ of habeas corpus1

and an application to proceed in forma pauperis pursuant to 28

U.S.C. § 1915(a). The respondent is Warden Joseph Bondiskey.

 The Petition asserts jurisdiction pursuant to 28 U.S.C. § 1

2241 but was docketed under 28 U.S.C. § 2254. For state

prisoners, § 2254 is a post-conviction remedy. Jurisdiction to

grant the writ to pre-trial detainees exists, however, under 28

U.S.C. § 2241. See Moore v. DeYoung, 515 F.2d 437, 441-42 (3d

Cir. 1975).

Case 1:10-cv-06426-JBS Document 7 Filed 08/04/11 Page 1 of 4 PageID: 60
Based on his affidavit of indigence, the Court will grant

Petitioner Earl Bailey’s application to proceed in forma

pauperis. Because it appears from a review of the Petition that

Petitioner Bailey is not entitled to issuance of the writ at this

time, the Court will dismiss the Petition. See 28 U.S.C. § 2243.

I. BACKGROUND

Petitioner asserts that he was arrested as a “victim of

circumstance” for having been present at the scene of a police

response to a domestic violence emergency call. He alleges that

he does not know the individuals involved but despite his lack of

involvement he was searched and arrested. He then alleges that

once in custody he was denied a probable cause hearing because

the Atlantic City Municipal Court does not hear probable cause

motions any longer. According to documents attached to the

Petition, the response from the Municipal Court was “Please be

advised our court doesn’t hear proable [sic] cause hearing [sic]

any longer, contact Superior Court for more information.” 

II. STANDARDS FOR A SUA SPONTE DISMISSAL

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.

2

Case 1:10-cv-06426-JBS Document 7 Filed 08/04/11 Page 2 of 4 PageID: 61
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 corpus petition if it appears from the face of

the petition 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). 

See also 28 U.S.C. §§ 2243, 2254, 2255.

III. ANALYSIS

Addressing the question whether a federal court should ever

grant a pre-trial writ of habeas corpus to a state prisoner, the

Court of Appeals for the Third Circuit has held:

(1) federal courts have “pre-trial” habeas corpus

jurisdiction;

(2) that jurisdiction without exhaustion should not be

exercised at the pre-trial stage unless

extraordinary circumstances are present ... ;

(3) where there are no extraordinary circumstances and

where petitioner seeks to litigate the merits of a

constitutional defense to a state criminal charge,

the district court should exercise its “pre-trial”

habeas jurisdiction only if petitioner makes a

3

Case 1:10-cv-06426-JBS Document 7 Filed 08/04/11 Page 3 of 4 PageID: 62
special showing of the need for such adjudication

and has exhausted state remedies.

Moore v. DeYoung, 515 F.2d 437, 443 (3d Cir. 1975).

As noted above, Petitioner does not allege that he has

exhausted his state remedies in any way. In the absence of

exhaustion, this Court should exercise pre-trial habeas

jurisdiction only if “extraordinary circumstances are present.” 

Petitioner has alleged no extraordinary circumstances. 

Accordingly, there is no basis for this Court to intervene in a

pending state criminal proceeding.

This Court expresses no opinion as to the merits of

Petitioner’s claim.

IV. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed without prejudice. An appropriate order follows.

 s/ Jerome B. Simandle 

Jerome B. Simandle

United States District Judge

Dated: August 4, 2011

4

Case 1:10-cv-06426-JBS Document 7 Filed 08/04/11 Page 4 of 4 PageID: 63