Opinion
1:19-cv-19201 (NLH)
01-07-2020
MONTY P. MILBOURNE, Petitioner, v. THE ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, et al., Respondents.
APPEARANCES: Monty P. Milbourne, No. 46305 Cumberland County Jail 54 West Broad St. Bridgeton, NJ 08302 Petitioner Pro se
MEMORANDUM OPINION & ORDER
APPEARANCES : Monty P. Milbourne, No. 46305
Cumberland County Jail
54 West Broad St.
Bridgeton, NJ 08302
Petitioner Pro se HILLMAN , District Judge
WHEREAS, on October 17, 2019, Petitioner Monty P. Melbourne filed a letter with the Court that was docketed as a petition for writ of habeas corpus under 28 U.S.C. § 2254, see ECF No. 1; and
WHEREAS, the Court administratively terminated the petition as Petitioner had not paid the filing fee or submitted an in forma pauperis application, see ECF No. 3; and
WHEREAS, on January 2, 2020, Petitioner filed an in forma pauperis application, see ECF No. 4; and
WHEREAS, the Clerk's Office received another document from Petitioner on January 2, 2020 that was docketed as a petition for writ of habeas corpus under 28 U.S.C. § 2241, see Milbourne v. Smith, No. 20-0012 (D.N.J. filed Jan. 2, 2020) ECF No. 1; and
WHEREAS, the § 2241 petition was accompanied by a letter from Petitioner explaining that he has not yet been sentenced by a state court. Milbourne, No. 20-0012 ECF No. 1-2. He stated that he has been held in the Cumberland County Jail for 26 months on charges that have not been brought before a grand jury. Id. at 2. He stated that he believed § 2241 to be more applicable to his situation, see id.; and
WHEREAS, section 2254 grants this Court jurisdiction to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court . . . ." 28 U.S.C. § 2254(a). Petitioner asserts he has not been sentenced or even indicted by a state court. Accordingly, this Court does not have jurisdiction under § 2254 to address Petitioner's arguments; and
WHEREAS, section 2241 is the appropriate method for consideration of a pre-trial habeas petition, see Moore v. De Young, 515 F.2d 437, 442 n.5 (3d Cir. 1975); and
WHEREAS, Petitioner has submitted a § 2241 petition for this Court's review. Milbourne v. Smith, No. 20-0012 (D.N.J. filed Jan. 2, 2020). The Court will therefore dismiss the § 2254 action without prejudice and consider Petitioner's arguments under § 2241 in Civil Action No. 20-0012. Petitioner should reference Civil Action No. 20-0012 in all further communication with the Court
Generally, prisoners may only file one petition under § 2254. However because the Court does not reach the merits of Petitioner's claims in this petition, the petition shall not count as a "first" § 2254 petition. Petitioner retains his right to file a new § 2254 petition, if necessary, at the conclusion of his state court proceedings. The Court makes no findings as to whether any potential forthcoming petition otherwise complies with § 2254. --------
THEREFORE, IT IS on this 7th day of January, 2020
ORDERED that the petition is dismissed without prejudice. The Court will consider Petitioner's arguments in Civil Action No. 20-0012; and it is finally
ORDERED that the Clerk shall serve a copy of this Order upon Petitioner by regular mail and mark this case closed.
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J. At Camden, New Jersey