NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

JOHN V. CARUSO, :

:

Petitioner, :

:

v. :

:

CHARLES ELLIS, :

:

Respondents. :

 :

Hon. Anne E. Thompson

Civil No. 11-2066 (AET)

OPINION

APPEARANCES:

JOHN V. CARUSO, 507305 NE 2L

Mercer County Correction Center

P.O. Box 8068

Trenton, New Jersey 08650

Petitioner Pro Se

THOMPSON, District Judge:

Petitioner John V. Caruso filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. §

2254 challenging his incarceration at Mercer County Correction Center in Trenton, New Jersey,

as a result of a February 4, 2011, order of the Superior Court of New Jersey, Mercer County,

denying bail without prejudice. For the reasons expressed below, this Court will construe the

matter as a habeas petition pursuant to 28 U.S.C. § 2241, dismiss the petition without prejudice

to the filing of a petition pursuant to 28 U.S.C. § 2254 after Petitioner exhausts remedies

available in the courts of the State of New Jersey, and deny a certificate of appealability. See 28

U.S.C. § 2254, Rule 4.

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I. BACKGROUND

The Petition before this Court, dated March 31, 2011, is a § 2254 form. Petitioner

challenges a February 4, 2011, order in State v. Caruso, Crim. No. 11-0029 order (N.J. Super.

Ct., Law Div. Feb. 4, 2011), denying bail without prejudice. (Docket Entry #1-1, p. 2.) The

challenged February 4, 2011, order is attached to the petition, as are several other documents

from the state criminal case: (1) Complaint-Warrant for Petitioner’s arrest on January 1, 2011,

charging him with the following crimes on January 1, 2011: robbery with a knife, stabbing

victim in the hand in the course of a theft, possession of a knife with the purpose to use it to stab

victim; (2) Petitioner’s notice of motion in State v. Caruso for speedy trial; (3) Petitioner’s

motion in State v. Caruso for bail reduction. (Docket Entry #1-1, pp. 6, 7, 8.)

Petitioner challenges the February 4, 2011, order on the following grounds:

Ground One: HELD ON UNSIGNED, UNSWORN WARRANT.

Ground Two: DENIAL OF BAIL.

Ground Three: SPEEDY TRIAL.

Ground Four: CRUEL AND UNUSUAL PUNISHMENT.

(Docket Entry #1, pp. 5, 7, 8, 10.)

Petitioner states that he did not exhaust any of these claims before the New Jersey courts

because he cannot get a hearing, the court is ignoring his motions, and it is pointless to appeal to

an oblivious court. (Docket Entry #1, pp. 6, 7, 9, 10.)

II. STANDARD OF REVIEW

“Habeas corpus petitions must meet heightened pleading requirements.” McFarland v.

Scott, 512 U.S. 849, 856 (1994). A petition is required to specify all the grounds for relief

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available to the petitioner, state the facts supporting each ground, state the relief requested, and

be signed under penalty of perjury. See 28 U.S.C. § 2254 Rule 2(c), applicable to § 2241

petitions through Rule 1(b). 

“Federal courts are authorized to dismiss summarily any habeas petition that appears

legally insufficient on its face.” McFarland, 512 U.S. at 856; Siers v. Ryan, 773 F.2d 37, 45 (3d

Cir. 1985), cert. denied, 490 U.S. 1025 (1989). Habeas Rule 4 accordingly requires the Court to

examine a petition prior to ordering an answer and, if it appears “that the petitioner is not entitled

to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the

petitioner.” 28 U.S.C. § 2254 Rule 4, applicable through Rule 1(b). 

III. DISCUSSION

A. Jurisdiction

A district court has subject matter jurisdiction under 28 U.S.C. § 2241(c)(3) to entertain a

pretrial petition for habeas corpus brought by a person who is in custody pursuant to an untried

state indictment. See Maleng v. Cook, 490 U.S. 488, 490 (1989); Braden v. 30th Judicial Circuit

Court of Kentucky, 410 U.S. 484 (1973); Mokone v. Fenton, 710 F.2d 998, 999 (3d Cir. 1983);

Moore v. DeYoung, 515 F.2d 437, 442, 443 (3d Cir. 1975). This Court has jurisdiction over the

Petition under 28 U.S.C. § 2241 and construes the Petition as such. While this Court has

jurisdiction under 28 U.S.C. § 2241 to entertain this pretrial habeas corpus Petition, it is clear

that such relief should not be granted. Petitioner asks this Court to grant pretrial habeas relief

based on four grounds, i.e., he is confined on an unsworn and unsigned warrant, delay in pretrial

proceedings violates his right to a speedy trial, state court has denied release on bail, his

incarceration constitutes cruel and unusual punishment. The problem with the Petition is that

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“federal habeas corpus does not lie, absent ‘special circumstances,’ to adjudicate the merits of an

affirmative defense to a state criminal charge prior to a judgment of conviction by a state court.” 

Braden, 410 U.S. at 489 (quoting Ex parte Royall, 117 U.S. 241, 253 (1886)). Indeed, “for

purposes of pre-trial habeas relief . . . a denial of speedy trial alone, and without more, does not

constitute an ‘extraordinary circumstance’” warranting habeas relief. See Moore, 515 F.2d at

448. Moreover, the doctrine of Younger v. Harris, 401 U.S. 37 (1971), forbids federal court

interference in pending state criminal proceedings. As the Supreme Court explained over 100 1

years ago, 

We are of the opinion that while the . . . court has the power to do

so, and may discharge the accused in advance of his trial if he is

restrained of his liberty in violation of the national constitution, it

is not bound in every case to exercise such a power immediately

upon application being made for the writ. We cannot suppose that

congress intended to compel those courts, by such means, to draw

to themselves, in the first instance, the control of all criminal

prosecutions commenced in state courts exercising authority within

the territorial limits, where the accused claims that he is held in

custody in violation of the constitution of the United States. The

injunction to hear the case summarily, and thereupon ‘to dispose of

the party as law and justice require,’ does not deprive the court of

discretion as to the time and mode in which it will exert the powers

conferred upon it. That discretion should be exercised in the light

of the relations existing, under our system of government, between

the judicial tribunals of the Union and of the states, and in

recognition of the fact that the public good requires that those

relations not be disturbed by unnecessary conflict between courts

equally bound to guard and protect rights secured by the

constitution. 

Ex parte Royall, 117 U.S. at 251.

 In Younger, the Supreme Court held that principles of equity and comity require district 1

courts to abstain from enjoining pending state criminal proceedings absent extraordinary

circumstances. See also Samuels v. Mackell, 401 U.S. 66, 69-73 (1971) (Younger abstention

doctrine applies to declaratory judgment actions). 

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The proper procedure for Petitioner is to exhaust his constitutional claims before all three

levels of the New Jersey courts and, if he is unsuccessful, to thereafter present them to this Court

in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Moore, 515 F.2d at

449. As the Third Circuit observed in regard to a pretrial § 2241 petition asserting violation of

the right to a speedy trial, 

Petitioner . . . will have an opportunity to raise his claimed denial

of the right to a speedy trial during his state trial and in any

subsequent appellate proceedings in the state courts. Once he has

exhausted state court remedies, the federal courts will, of course,

be open to him, if need be, to entertain any petition for habeas

corpus relief which may be presented. These procedures amply

serve to protect [Petitioner]’s constitutional rights without pre-trial

federal intervention in the orderly functioning of state criminal

processes.

Moore, 515 F.2d at 449; see also United States v. Castor, 937 F.2d 293, 296-297 (7th Cir. 1991);

Dickerson v. State of Louisiana, 816 F.2d 220, 225-227 (5th Cir. 1987); Atkins v. State of

Michigan, 644 F.2d 543, 545-547 (6th Cir. 1981); Carden v. State of Montana, 626 F.2d 82 (9th

Cir. 1980).2

As exceptional circumstances of peculiar urgency do not exist in this case, Petitioner is

not entitled to a pretrial Writ of Habeas Corpus and this Court will summarily dismiss the

Petition. 

 In United States v. MacDonald, 435 U.S. 850, 858 (1978), the Supreme Court clarified 2

that speedy trial claims are to be considered after the facts have developed at trial. The Court

observed that the Speedy Trial Clause “does not, either on its face or according to the decisions

of this Court, encompass a ‘right not to be tried’ which must be upheld prior to trial if it is to be

enjoyed at all.” Id. at 861. 

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B. Certificate of Appealability

This Court denies a certificate of appealability because Petitioner has not made “a

substantial showing of the denial of a constitutional right” under 28 U.S.C. § 2253(c)(2). See

Miller-El v. Cockrell, 537 U.S. 322 (2003).

IV. CONCLUSION

Based on the foregoing, this Court will dismiss the Petition without prejudice and deny a

certificate of appealability.

/s/ Anne E. Thompson 

ANNE E. THOMPSON, U.S.D.J.

Dated: April 15, 2011

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