NOT FOR PUBLICATION CLOSED

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JUSTICE I. ALLAH, :

a/k/a Melvin Baldwin, : Civil Action No. 10-3977 (FSH)

:

Petitioner, :

:

v. : OPINION

:

BRIAN RIORDAN, et al., :

:

Respondents. :

APPEARANCES:

Petitioner pro se

Justice I. Allah

a/k/a Melvin Baldwin

Union County Jail

15 Elizabethtown Plaza

Elizabeth, NJ 07202

HOCHBERG, District Judge

Petitioner Justice I. Allah, also known as Melvin Baldwin, a

pre-trial detainee currently confined at Union County Jail in

Elizabeth, New Jersey, has submitted a petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241. The respondents 1

 Section 2241 provides in relevant part: 1

(a) Writs of habeas corpus may be granted by the

Supreme Court, any justice thereof, the district courts

and any circuit judge within their respective

jurisdictions.

(c) The writ of habeas corpus shall not extend to a

prisoner unless-- ... (3) He is in custody in violation

of the Constitution or laws or treaties of the United

States ... .

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include Union County Jail Director Brian Riordan, Prosecutor

Theodore Romankow, Assistant Prosecutor Joshua McMahon, and the

State of New Jersey.

Petitioner has neither pre-paid the $5.00 filing fee nor

submitted an application for leave to proceed in forma pauperis.

Because it appears from a review of the Petition that

Petitioner is not entitled to relief at this time, the Petition

will be dismissed without prejudice. See 28 U.S.C. § 2243.

I. BACKGROUND

In the Petition and supplemental letters, Petitioner asserts

that he was arrested on August 21, 2009, but released on

September 12, 2009, after some charges were dismissed and after

posting a bond on the remaining offenses. He alleges that he was

arrested again on April 11, 2010, when he was held pursuant to

bail of $50,000.

Petitioner alleges in this Petition, dated August 2, 2010,

that his detention is illegal on various grounds, including, for

example, the failure to warn him of his right to remain silent,

the failure to comply with the Interstate Agreement on Detainers,

the failure to give him a copy of the arrest warrant or criminal

complaint, the failure to advise him of his right to be

Jurisdiction to grant the writ to pre-trial detainees in

state custody exists under 28 U.S.C. § 2241. See Moore v.

DeYoung, 515 F.2d 437, 441-42 (3d Cir. 1975). For state

prisoners, 28 U.S.C. § 2254 is a post-conviction remedy.

2

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represented by counsel, the failure to give him a timely probable

cause hearing.

Petitioner does not allege that he has made any attempt to

exhaust any of these claims in state court.

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.

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

3

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F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989). 

See also 28 U.S.C. §§ 2243, 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

special showing of the need for such adjudication

and has exhausted state remedies.

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

Exhaustion is required of a state pre-trial detainee seeking

a federal writ of habeas corpus. In the absence of exhaustion,

this Court should exercise pre-trial habeas jurisdiction only if

“extraordinary circumstances are present.” 

Petitioner has not alleged exhaustion of his state remedies,

nor has he alleged any extraordinary circumstances that would

justify this Court’s exercise of jurisdiction. Moreover, this

Petition is dated August 2, 2010, less than four months after

Petitioner’s arrest on April 11, 2010. It does not appear that

Petitioner could have exhausted his state remedies in that period

4

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of time. Accordingly, there is no basis for this Court to

intervene in this pending state criminal proceeding.

IV. CONCLUSION

For the reasons set forth above, the Petition will be

dismissed without prejudice as unexhausted. This Court 2

expresses no opinion as to the merits of Petitioner’s claims. An

appropriate order follows.

 /s/ Faith S. Hochberg 

Faith S. Hochberg

United States District Judge

Dated: August 17, 2010

 Should Petitioner be able to demonstrate that he has 2

exhausted these claims in state court, he may move to re-open

this matter. Any motion to re-open must be accompanied by either

the filing fee or an application for leave to proceed in forma

pauperis.

5

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