NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

______________________________

 :

MARY K. BOWLES: BEY, :

 : Civil Action No. 11-3081 (CCC)

Petitioner, :

 :

v. : OPINION

 :

ROY HENDRICKS, et al., :

:

Respondents. :

:

APPEARANCES:

MARY K. BOWLES: BEY, Petitioner Pro Se

1589 SKEET CLUB ROAD

SUITE 102 #298

HIGH POINT, NC 27265

CECCHI, District Judge

This matter comes before the Court by way of Mary K. Bowles:

Bey’s (“Bowles: Bey” or “Petitioner”) petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons

discussed below, Petitioner will be granted thirty days to resubmit her petition, as it currently does not comply with the

Section 2254 Habeas Rules. Petitioner must also demonstrate that

she meets the “in custody” requirement of 28 U.S.C. § 2254, as on

the face of her petition it appears that she does not.

1

Case 2:11-cv-03081-CCC Document 12 Filed 11/17/11 Page 1 of 5 PageID: 167
I. STANDARD OF REVIEW

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).

II. ANALYSIS

A. Requirements for 28 U.S.C. § 2254 Petitions

Rule 2(c) of the Rules Governing Section 2254 Cases in the

United States District Court requires, inter alia, that the

petition: (1) specify all the grounds for relief available to the

petitioner; (2) state the facts supporting each ground; and (3)

state the relief requested. R. 2(c) (1)-(3). Further, Rule 2(d)

requires that the petition “substantially follow either the form

appended to [the Rules] or a form prescribed by a local district

court rule.” R. 2(d). 

Bowles: Bey’s current petition does not meet these

requirements. Specifically, it is not clear to the Court from

the face of the petition the grounds for relief available to

2

Case 2:11-cv-03081-CCC Document 12 Filed 11/17/11 Page 2 of 5 PageID: 168
Petitioner; the facts Petitioner alleges to support those

grounds; or the relief Petitioner is requesting from this Court. 

Therefore, Petitioner shall be granted 30 days from the date of

this Opinion to resubmit an amended petition that complies with

Rule 2 of the Section 2254 Habeas Rules. The Clerk of the Court

shall provide Petitioner with a blank form for a Petition for

Relief From a Conviction or Sentence By a Person in State Custody

(Petition Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus). 

B. “In Custody” Under 28 U.S.C. § 2254

It appears from the petition that Bowles: Bey is not

currently incarcerated. In addition, Court notes that Petitioner

personally took receipt of the Exemplification Certificate

(CM/ECF Docket Entry No. 8) from the Clerk’s Office on August 25,

2011. As such, it appears that Petitioner may not meet the “in

custody” requirement of 28 U.S.C. § 2254. Section 2254 provides:

(a) The Supreme Court, a Justice thereof, a circuit judge,

or a district court shall entertain an application for a

writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a state court only on the ground

that he is in custody in violation of the Constitution or

laws or treaties of the United States.

28 U.S.C. § 2254(a)(emphasis added). While the “in custody”

requirement is liberally construed for purposes of habeas corpus,

a petitioner must be “in custody” under the conviction he is

attacking when the petition is filed, in order for this Court to

3

Case 2:11-cv-03081-CCC Document 12 Filed 11/17/11 Page 3 of 5 PageID: 169
have jurisdiction. See Maleng v. Cook, 490 U.S. 488, 490-92

(1989).

Indeed, as the Court of Appeals for the Third Circuit has

stated, “custody is the passport to federal habeas corpus

jurisdiction.” Dessus v. Pennsylvania, 452 F.2d 557, 560 (3d

Cir.1971), cert. denied, 409 U.S. 853, 93 S.Ct. 184, 34 L.Ed.2d

96 (1972). “Custody” is defined not only as physical confinement,

but includes circumstances entailing such limitations on a

person's liberty as those imposed during parole. See Maleng, 490

U.S. at 491; see also Hensley v. Mun. Court, 411 U.S. 345, 93

S.Ct. 1571, 36 L.Ed.2d 294 (1973) (determining that a habeas

petitioner released on his own recognizance, who suffered

restraints on freedom of movement not shared by public generally,

met “in custody” requirement). However, a habeas petitioner is

not “in custody” under a conviction when the sentence imposed for

that conviction has fully expired at the time his petition is

filed. See Maleng, 490 U.S. at 491.

Here, it appears from the face of the petition that Bowles:

Bey is not “in custody.” Specifically, it is not entirely clear

what state court conviction Petitioner is challenging, and it

does not appear that she is currently incarcerated. Further, on

the face of the petition, Bowles: Bey does not seem to be

currently on probation or parole from a state court conviction or

4

Case 2:11-cv-03081-CCC Document 12 Filed 11/17/11 Page 4 of 5 PageID: 170
in any other way “in custody.” Thus, she may not be entitled to

relief under Section 2254 and her petition may be subject to

dismissal for lack of jurisdiction. 

However, before this Court dismisses the petition for lack

of jurisdiction, Petitioner will be given the opportunity to show

cause in writing why her petition should not be dismissed for

failure to satisfy the “in custody” requirement under 28 U.S.C. §

2254(a).

III. CONCLUSION

For the foregoing reasons, this Court finds that Bowles:

Bey’s petition does not comply with Rule 2 of the Rules Governing

Section 2254 Cases in the United States District Court. 

Petitioner shall be granted 30 days from the date of this Opinion

to resubmit an amended petition that complies with the Section

2254 Habeas Rules. Further, the Court also finds that Bowles:

Bey’s petition may be subject to dismissal for lack of “in

custody” jurisdiction. Accordingly, the Court will order

Petitioner to show cause in writing why her petition should not

be dismissed for failure to satisfy the “in custody” requirement

of 28 U.S.C. § 2254(a). An appropriate order follows.

s/Claire C. Cecchi 

Dated: November 17, 2011 CLAIRE C. CECCHI

United States District Judge

5

Case 2:11-cv-03081-CCC Document 12 Filed 11/17/11 Page 5 of 5 PageID: 171