UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JOSEPH P. SCHIMMINGER, :

: Civil Action No. 11-36 (RMB)

Petitioner, :

:

v. : OPINION

:

CAMDEN COUNTY PAROLE OFFICE, :

et al., :

:

Respondents. :

APPEARANCES:

JOSEPH P. SCHIMMINGER, Petitioner pro se

401 E. Gibbsboro Road, Apt. 604

Lindenwold, New Jersey 08012

BUMB, District Judge

This matter is before the court pursuant to a petition for a

writ of habeas corpus under 28 U.S.C. § 2241, filed by petitioner

Joseph P. Schimminger, on or about January 5, 2011. At the time

he filed this habeas petition, Petitioner was confined at the

Camden County Correctional Facility in Camden, New Jersey. He

has since been released from jail. The named respondents in the

petition are the Camden County Parole Office, Officer Robert

Murphy, Officer Malloy and Officer Carozza. Petitioner failed to

pay the $5.00 filing fee, or submit a complete application to

proceed in forma pauperis.

I. BACKGROUND

According to the allegations contained in the petition,

Petitioner appears to challenge the terms or conditions of the 

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parole issued pursuant to his New Jersey state court sentence.

Namely, Petitioner complains that he is not permitted to have any

contact with his fiancee and that he had to move from his

mother’s house because his sister lives next door with three

children. (Petition, ¶ 10a and b).

Petitioner states that his sentence was imposed on January

29, 2010. He does not allege that he filed any direct appeal

from his conviction or sentence, or that he sought administrative

or state court review of the terms and conditions of his parole,

which he now challenges. 

II. ANALYSIS

A. Standards for a Sua Sponte Dismissal

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.

Petitioner brings his habeas petition as a pro se litigant. 

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.

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Brierley, 414 F.2d 552, 555 (3d Cir. 1969), cert. denied, 399

U.S. 912 (1970).

B. Failure to Exhaust State Court Remedies

Petitioner brings this habeas petition pursuant to 28 U.S.C.

§ 2241, the general habeas statute. However, because Petitioner

actually is challenging the terms and conditions of a state court

sentence of parole, his habeas petition is more appropriately

characterized as a habeas action under 28 U.S.C. § 2254. Indeed, 

a petitioner’s challenges to the terms of parole amount, in

effect, to challenges to the lawfulness of his custody, which

must be brought as a petition for writ of habeas corpus under 28

U.S.C. § 2254, following exhaustion of state remedies. See,

e.g., Arnett v. Kemp, 121 Fed. Appx. 658 (7th Cir. Dec. 20,

2004); Benke v. Norris, 230 F.3d 1362 (Table), 2000 WL 1286258

(8th Cir. Sept. 13, 2000).

Here, Petitioner challenges the terms of his parole

sentence, which restricts his contact with his girlfriend and his

sister’s children. However, Petitioner does not allege that he

has sought administrative or state court review of the terms of

his parole. He admits that his sentence was imposed on January

29, 2010, just 14 months ago.

Section 2254 habeas petitions require exhaustion of state

court remedies before proceeding in federal court. Exhaustion of

state remedies has been required for more than a century, since

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the Supreme Court’s decision in Ex parte Royall, 117 U.S. 241

(1886). The exhaustion doctrine was first codified at 28 U.S.C.

§ 2254 in 1948, see Rose, 455 U.S. at 516-18, and was the subject

of significant revisions in the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), Pub.L. 104-132, 110 Stat. 1217 (April 24,

1996). The exhaustion requirement is intended to allow state

courts the first opportunity to pass upon federal constitutional

claims, in furtherance of the policies of comity and federalism. 

Granberry v.. Greer, 481 U.S. 129 (1987); Rose, 455 U.S. at 516-

18. Exhaustion also has the practical effect of permitting

development of a complete factual record in state court, to aid

the federal courts in their review. Rose, 455 U.S. at 519.

In this case, it is apparent from the face of the petition

that Petitioner has failed to exhaust his state court remedies

with regard to his complaints concerning the terms of his parole. 

Moreover, Petitioner has not demonstrated that there is an

absence of available state corrective processes before proceeding

in this federal court. See 28 U.S.C. § 2254(b)(1). See also

Rose v. Lundy, 455 U.S. 509, 515 (1982); Lambert v. Blackwell,

134 F.3d 506, 513 (3d Cir. 1997), cert. denied, 532 U.S. 919

(2001).

Therefore, where Petitioner has failed to exhaust his state

court remedies before bringing this federal habeas petition under

§ 2254, his petition must be dismissed without prejudice. 

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III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), unless a circuit justice or

judge issues a certificate of appealability, an appeal may not be

taken from a final order in a proceeding under 28 U.S.C. § 2254. 

A certificate of appealability may issue “only if the applicant

has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree

with the district court’s resolution of his constitutional claims

or that jurists could conclude the issues presented are adequate

to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 1537 U.S. 322 (2003). “When the district court denies

a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, a COA should issue

when the prisoner shows, at least, that jurists of reason would

find it debatable whether the petition states a valid claim of

the denial of a constitutional right and that jurists of reason

would find it debatable whether the district court was correct in

its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000).

Here, jurists of reason would not find it debatable that

this Court was correct in its procedural ruling that Petitioner

has failed to exhaust his state remedies before bringing this

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federal habeas petition. Accordingly, no certificate of

appealability will issue.

IV. CONCLUSION

For the foregoing reasons, the petition for habeas relief

under either 28 U.S.C. § 2241 (as asserted by Petitioner) or 28

U.S.C. § 2254 (as more properly construed by this Court) will be

dismissed without prejudice. This Court makes no determination

as to the merits of petitioner’s claims. No certificate of

appealability will issue. An appropriate Order follows. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

DATED: April 21, 2011

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