NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

JOHN JOSEPH PERRY, :

Civil Action No. 11-4064 (FLW)

Petitioner, :

v. : O P I N I O N

ROBERT BROTHERS, Warden, :

Respondent. :

 

APPEARANCES:

John Joseph Perry, Pro Se

DQ-4409

SCI Dallas

1000 Follies Road

Dallas, PA 18612

WOLFSON, District Judge

Petitioner, John Joseph Perry, was a prisoner confined at

the Warren County Correctional Center, Belvidere, New Jersey at

the time he filed this petition for a writ of habeas corpus,

pursuant to 28 U.S.C. § 2241. Petitioner seeks to challenge his 1

extradition procedures and his detention. The respondent is the

 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

jurisdiction. 

(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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Warden of the Warren County Correctional Facility, Robert

Brothers.2

BACKGROUND

The procedural history surrounding Petitioner’s petition is

a bit muddled. However, the petition, an attached Certification

from Petitioner’s criminal case in New Jersey state court, and an

attached “procedural history” proffered by Petitioner provide the

Court with the following facts.

In 2007, Petitioner was incarcerated in Pennsylvania for

various criminal charges “stemming from a conjoining offense

committed in the State of New Jersey.” (Procedural History,

docket entry 1, at p. 11 of 18). Although Petitioner was set

free on bail pending the Pennsylvania charges, there was a

warrant to commit and detain Petitioner by Pennsylvania Board of

Probation and Parole. (Id.). While being held on the probation

and parole warrant, New Jersey lodged a detainer warrant against

Petitioner on December 4, 2007. (Id.). On December 24, 2007,

Petitioner received a decision from Pennsylvania probation and

parole, sentencing him to serve a nine month term for violating

parole. (Id. at p. 12 of 18).

 It is unclear where Petitioner is currently housed. The 2

docket in this matter has Petitioner housed at the State

Correctional Institution, Dallas, Pennsylvania. However, the

Pennsylvania inmate locator does not indicate that Petitioner is

housed anywhere in Pennsylvania.

2

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Petitioner states that he was not advised of the New Jersey

warrant until August 11, 2008. At that time, he requested to be

formally extradited to New Jersey under the Interstate Agreement

on Detainers (“IAD”). Petitioner alleges that both the New

Jersey and Pennsylvania officials failed to adhere to the terms

of the IAD and the Uniform Criminal Extradition Act. 

Pennsylvania advised Petitioner that the IAD did not apply to him

because he still had Pennsylvania charges pending. (Id.).

On April 16, 2008, Petitioner was taken to court in

Pennsylvania and was informed that his extradition to New Jersey

was being processed, and that New Jersey had ninety days to take

custody of Petitioner. (Id. at p. 13 of 18). Petitioner

questioned Pennsylvania about how his extradition could be

processed since they had told him that he wasn’t allowed to be

extradited due to his pending Pennsylvania charge. Petitioner

filed numerous civil complaints in Pennsylvania. On October 9,

2009, Petitioner was released from Pennsylvania on a grant of the

writ of habeas corpus. On November 22, 2009, New Jersey issued a

warrant for Petitioner. (Id. at p. 15 of 18).

On April 20, 2010, Petitioner was apprehended in

Pennsylvania as a fugitive from justice, and was held in

Pennsylvania for seven months. He was processed for extradition

to New Jersey. Petitioner was extradited to New Jersey on

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November 11, 2010. (Id. at 16 of 18; Pet., ¶¶ L-M;

Certification, ¶ 28).

It is unclear what Petitioner asks of this Court. He states

that he seeks an order “dismissing the indictment against

[Petitioner] with prejudice.” It is unclear to which indictment

he refers. Also, the Court notes that Petitioner currently has a

civil case pending in the United States District Court, Middle

District of Pennsylvania, seeking § 1983 damages from various

Pennsylvania authorities for “nineteen months of illegal

incarceration in that state.” (Certification ¶ 29; see also

Perry v. Nish, 09-cv-1381 (WJN) (M.D. Pa.)).

DISCUSSION

I. 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. See 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

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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, 2255.

II. ANALYSIS

The duty of a state to extradite an individual to another

state is rooted in the Extradition Clause of the Constitution of

the United States, which provides:

A Person charged in any State with Treason, Felony, or

other Crime, who shall flee from Justice, and be found

in another State, shall on Demand of the executive

Authority of the State from which he fled, be delivered

up, to be removed to the State having Jurisdiction of

the Crime.

United States Constitution, Art. IV, § 2, cl. 2.

Congress implemented this non-self-executing constitutional

duty with the enactment of the Extradition Act.

Whenever the executive authority of any State or

Territory demands any person as a fugitive from

justice, of the executive authority of any State,

District, or Territory to which such person has fled,

and produces a copy of an indictment found or an

affidavit made before a magistrate of any State or

Territory, charging the person demanded with having

committed treason, felony, or other crime, certified as

authentic by the governor or chief magistrate of the

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State or Territory from whence the person so charged

has fled, the executive authority of the State,

District, or Territory to which such person has fled

shall cause him to be arrested and secured, and notify

the executive authority making such demand, or the

agent of such authority appointed to receive the

fugitive, and shall cause the fugitive to be delivered

to such agent when he shall appear. If no such agent

appears within thirty days from the time of the arrest,

the prisoner may be discharged.

18 U.S.C. § 3182. See also Uniform Criminal Extradition Law,

N.J.S.A. § 2A:160–9, et seq.

Interstate extradition is intended to be “a summary and

mandatory executive proceeding.” Michigan v. Doran, 439 U.S.

282, 288 (1978). The purposes of the Extradition Clause are “to

enable each state to bring offenders to trial as swiftly as

possible in the state where the alleged offense was committed,”

and “to preclude any state from becoming a sanctuary for

fugitives from justice of another state.” Id. at 287.

It is well-established that individuals have a federal right

to challenge their extradition by petition for writ of habeas

corpus. See, e.g., Roberts v. Reilly, 116 U.S. 80 (1850). The

scope of such habeas review, however, is narrow.

Once the governor has granted extradition, a court

considering release on habeas corpus can do no more

than decide (a) whether the extradition documents on

their face are in order; (b) whether the petitioner has

been charged with a crime in the demanding state; (c)

whether the petitioner is the person named in the

request for extradition; and (d) whether the petitioner

is a fugitive. These are historic facts readily

verifiable.

Doran, 439 U.S. at 289.

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Moreover, “[o]nce the fugitive is returned to the demanding

state, the right to challenge extradition becomes moot: the

fugitive is no longer being detained by the asylum state, and so,

the legality of his or her detention there is no longer at

issue.” Barton v. Norrod, 106 F.3d 1289, 1298 (6th Cir. 1997).

Here, it appears that Petitioner is in custody pursuant to

the November 22, 2009 New Jersey detainer, and new charges from

Pennsylvania probation and parole, which mooted the prior grant

of habeas relief (see Procedural History, docket entry 1, at p.

16 of 18, stating: “At the time of the hearing which was granted

on the matter on October 8, 2010, . . . the State of Pennsylvania

along with the Pennsylvania Board of Probation and Parole’s

contention was that the writ of habeas corpus is now moot. ...

The [Pennsylvania Judge] . . . denied the habeas relief as well

as ordered the extradition of Petitioner to the State of New

Jersey by way of the [IAD].”).

Further, Petitioner has been returned to New Jersey, the

demanding state (see Attachment to Petition, “Certification” at ¶

28, stating: “On November 11, 2010 I was transferred to New

Jersey.”). Accordingly, this petition for writ of habeas corpus,

challenging his detention pursuant to the IAD, has become moot

and will be dismissed.

Additionally, this Court finds no violation of the

Constitution. Petitioner was charged with crimes in both New

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Jersey and Pennsylvania, and is being processed accordingly. If

Petitioner seeks to challenge his criminal charges or

convictions, he must do so by way of the state courts, and, if

applicable, the habeas provisions of 28 U.S.C. § 2254, after

exhaustion of his state court remedies.

CONCLUSION

For the reasons set forth above, the petition will be

dismissed. An appropriate order follows.

 s/Freda L. Wolfson 

FREDA L. WOLFSON

United States District Judge

Dated: April 30, 2012

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