Opinion
Civil Action No. 98-3017 (NHP).
August 19, 1999
Mr. Stephen J. Muniz, Keyport, N.J., Petitioner Pro Se.
Mark P. Stalford, Assistant Prosecutor, JOHN KAYE, MONMOUTH COUNTY PROSECUTOR, Freehold, N.J., Attorneys for Respondents.
THE ORIGINAL OF THIS LETTER OPINION IS ON FILE WITH THE CLERK OF THE COURT
Dear Litigants:
This matter comes before the Court on the petition of Stephen J. Muniz to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2254. The Court has decided the matter without oral argument according to Federal Rule of Civil Procedure 78. After consideration of the papers submitted by both parties to the action, the Court concludes that the petition should be DISMISSED.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
On March 27, 1986, a Monmouth County grand jury indicted petitioner Stephen J. Muniz (hereinafter "Muniz") with death by auto, contrary to N.J.S.A. § 2C:11-5. On June 13, 1986, petitioner entered a plea of not guilty. Muniz was tried and found guilty of death by auto on February 3, 1987. Petitioner was sentenced to an indeterminate term in the Youth Reception and Correction Center at Yardville. Petitioner took a direct appeal from his conviction which was reversed by the Appellate Division and remanded for a new trial. On March 26, 1990, the Supreme Court of New Jersey reversed the Appellate Division's decision and reinstated petitioner's conviction. However, the Supreme Court also granted Muniz leave to file a motion for clarification of opinion.
On June 19, 1990, petitioner's motion for clarification of opinion was granted by the Appellate Division. The Appellate Division again reversed petitioner's conviction for prosecutorial misconduct and a new trial was granted. The Supreme Court of New Jersey subsequently denied the State's application for certification. On or about December 3, 1992, petitioner's new trial resulted in a hung jury.
On March 26, 1993, Muniz pled guilty to death by auto, reckless driving and disregarding a traffic light. Petitioner was sentenced to four years probation conditioned on 106 days time served. Petitioner appealed his sentence which was subsequently affirmed by the Appellate Division on November 16, 1993.
On February 1, 1994, Muniz filed an application for a writ of habeas corpus in the United States District Court for the District of New Jersey. Petitioner's application was dismissed by the Honorable Clarkson S. Fisher, U.S.D.J. on June 13, 1994 for failure to exhaust state remedies. Petitioner subsequently filed a notice of motion for reconsideration of the June 13, 1994 order. On September 7, 1994, petitioner's application was again dismissed for failure to exhaust state remedies.
Pursuant to New Jersey Court Rule 3:22-1, Muniz made an application for post-conviction relief in the Superior Court, Law Division, Monmouth County, which was denied on February 3, 1995. On May 14, 1996, petitioner was released from his sentence of four years probation conditioned on 106 days served. On April 16, 1997, the Appellate Division affirmed the order denying post —
It is significant to note that Muniz is presently under no restraint by the State of New Jersey.
conviction relief. The Supreme Court of New Jersey denied certification on June 30, 1997.
Petitioner took an appeal nunc pro tunc from the trial court's order denying post-conviction relief dated February 3, 1995.
Muniz filed the subject petition for a writ of habeas corpus in the United States District Court for the District of New Jersey on June 25, 1998. Respondent's filed an Answer to petitioner's application on August 24, 1998.
DISCUSSION
"The sole justification of federal habeas jurisdiction for a state prisoner is the statutory mandate that the applicant be a `person in custody pursuant to the judgment of a State court.'" United States ex. rel. Dessus v. Pennsylvania, 452 F.2d 557, 560 (3rd Cir. 1971) (quoting 28 U.S.C. § 2254). "Thus, custody is the passport to federal habeas corpus jurisdiction. Without custody, there is no detention. Without detention, or the possibility thereof, there is no federal habeas jurisdiction." Id.
"[I]n order to qualify for habeas corpus relief in the federal courts an applicant must be in custody" at the time his petition is filed.United States ex. rel. Wojtycha v. Hopkins, 517 F.2d 420, 423 (3rd Cir. 1975). "This requirement `is designed to preserve the writ of habeas corpus as a remedy for severe restraints on liberty.'" Barry v. Bergen County Probation Dept., 128 F.3d 152, 161 (3rd Cir. 1997) (quotingHensley v. Municipal Court, 411 U.S. 345, 351 (1973)). However, the "in custody" requirement of 28 U.S.C. § 2241 does not necessarily require that a person be physically confined in order to challenge his sentence.See Maleng v. Cook, 490 U.S. 488, 490 (1989). "Custody is established whenever a restraint on liberty is either actual or imminent." Barry, 128 F.3d at 161.
In the case at bar, Muniz argues that he is entitled to habeas corpus relief because he was sentenced to four years probation conditioned on 106 days time served. Petitioner further appears to argue that any delay in the filing of his application was caused by the State's dilatory tactics for which he should not be held accountable. While individuals on probation have traditionally been considered "in custody" (for purposes of federal habeas relief) because they are subject to restraints on liberty not shared by the public generally, petitioner's argument is flawed in that he was not on probation at the time he filed the subject application. See id. at 159.
Muniz was sentenced to four years probation conditioned on 106 days time served on March 6, 1993. Petitioner was released from his probationary sentence on May 14, 1996. On June 25, 1998, more than two years after his probationary release, petitioner filed this application for a writ of habeas corpus. Thus, at the time petitioner filed the subject application he was under no actual or imminent restraint of liberty and, consequently, his petition is moot.
Petitioner also argues that his petition was not filed while "in custody" because of the alleged dilatory tactics of the State. In Spencer v. Kemna, 118 S.Ct. 978, 988 (1998), the Supreme Court decided a similar situation in which petitioner Spencer alleged that even if his application for a writ of habeas corpus was moot, the court should entertain the merits of his petition because the mootness was caused by the dilatory tactics of the state attorney general's office and the delay of the District Court. The Supreme Court held, "mootness, however it may come about, simply deprives us of our power to act; there is nothing for us to remedy, even if we were disposed to do so. We are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong." Id.
In the case at bar, Muniz fails to provide any evidence of the state's alleged dilatory tactics. Furthermore, regardless of whether the State's alleged dilatory tactics delayed the filing of petitioner's application, this Court is without the jurisdictional authority to decide the merits of petitioner's claims as his application is moot.
For each of the aforementioned reasons, petitioner's application for a writ of habeas corpus must be dismissed as moot.
CONCLUSION
For the aforementioned reasons, the petition to vacate, set aside, or correct the petitioner's sentence pursuant to 28 U.S.C. § 2254 is DISMISSED.
A certificate of appealability shall not issue since the petitioner has not made a showing of the denial of a constitutional right.
An appropriate Order accompanies this Letter Opinion.
NICHOLAS H. POLITAN
U.S.D.J.