The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
THOMAS BACON, :
:
Petitioner, : Civ. No. 21-1116 (NLH)
:
v. : OPINION
:
STATE OF NEW JERSEY, et al., :
:
Respondents. :
___________________________________:
APPEARANCES:
Thomas Bacon
91231-083
Fort Dix
Federal Correctional Institution
Inmate Mail/Parcels
East: P.O. Box 2000
Fort Dix, NJ 08640
Petitioner Pro se
HILLMAN, District Judge
Petitioner Thomas Bacon filed this petition for writ of
habeas corpus under 28 U.S.C. § 2241 challenging a detainer
issued by the New Jersey State Parole Board (“NJSPB”). ECF No.
1. For the reasons that follow, the Court will dismiss the
petition for lack of jurisdiction.
I. BACKGROUND
On December 15, 1999, Petitioner received an 18-year
sentence in the Superior Court of New Jersey, Law Division,
Hudson County, for robbery and possession of a handgun. ECF No.
1 at 3. He was released on parole from Southern State
Correctional Facility on September 9, 2013. Id. at 4. “Between
September 9, 2013 and August 3, 2015, Petitioner was under the
custody and control of the New Jersey State Parole Board under a
compact pursuant to the Interstate Commission on Adult Probation
and Parole to the State of Virginia.” Id.
Around August 3, 2015, Petitioner was arrested in Virginia
by the Richmond Police Department. Id. Virginia authorities
notified NJSPB of the arrest. Id. Petitioner posted bond on or
about September 11, 2015 and was released. Id. He was
rearrested by Henrico Police Department on approximately April
19, 2017. Id. NJSPB was again notified of the arrest. Id.
Virginia declined to prosecute Petitioner in July 2017, and
Petitioner was taken into federal custody to face charges of
possession of a firearm and ammunition by a convicted felon, 18
U.S.C. § 922(g)(1). Id.; United States v. Bacon, No. 3:17-cr-
00098 (E.D. Va.). The District Court sentenced Petitioner to a
total term of 212 months to be followed by a three-year term of
supervised release. Judgment of Conviction, Bacon, No. 3:17-cr-
00098 (E.D. Va. Mar. 20, 2018) (ECF No. 32). Petitioner is
presently detained at FCI Fort Dix, New Jersey.1
1 According to the Bureau of Prisons’ website, Petitioner’s
current release date is April 20, 2030. Inmate Locator,
available at https://www.bop.gov/inmateloc/# (last visited June
6, 2022).
“[A]fter the United States concluded its prosecution of
Petitioner, the State of New Jersey filed Warrant Number B20
25638 and lodged an official detainer with the Federal Bureau of
Prisons in order to ensure Petitioner’s production to the State
of New Jersey upon conclusion of the federal term of
imprisonment.” ECF No. 1 at 5. Petitioner wrote to the NJSPB
“seeking to resolve the charges by entry of a guilty plea and
imposition of sentence in absentia.” Id. at 6. “On or about
July 23, 2020, Carla M. Shabazz, Assistant Chief Revocation
Unit, New Jersey State Parole Board responded that no action
would be taken on such a request and that the detainer would
remain.” Id.
Petitioner alleges the detainer violates his due process
rights because “the State of New Jersey (i) had primary custody
jurisdiction over Petitioner, (ii) was directly notified of
Petitioner’s arrests, (iii) was directly notified of
Petitioner’s prosecution in federal court, (iv) failed to seek
Petitioner’s production into and within the State of New Jersey,
and (v) otherwise waived primary custody jurisdiction by failing
to demand Petitioner be placed back into the custody of the
State of New Jersey in order to properly resolve the parole
charges.” Id. at 6-7. He asserts the “detainer is preventing
Petitioner from accessing numerous Bureau of Prisons programs,
including but not limited to, minimum security camp placement,
halfway house consideration, First Step Act time credits,
Residential Drug Abuse treatment, and other benefits.” Id. at
3. “Petitioner seeks a writ of habeas corpus quashing the
detainer and prohibiting the State of New Jersey from filing any
further detainer.” Id. at 2.
II. STANDARD OF REVIEW
Title 28, Section 2243 of the United States Code 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 must be construed liberally. See
Hunterson v. DiSabato, 308 F.3d 236, 243 (3d Cir. 2002).
Nevertheless, a federal district court must dismiss a
habeas corpus petition if it appears from the face of the
petition that Petitioner is not entitled to relief. 28 U.S.C. §
2254 Rule 4 (made applicable through Rule 1(b)); see also
McFarland v. Scott, 512 U.S. 849, 856 (1994); Siers v. Ryan, 773
F.2d 37, 45 (3d Cir. 1985), cert. denied, 490 U.S. 1025 (1989).
III. ANALYSIS
Section 2241 confers jurisdiction on district courts to
issue writs of habeas corpus in response to a petition from a
state or federal prisoner who “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28
U.S.C. § 2241(c)(3). A habeas petitioner must “be ‘in custody’
under the conviction or sentence under attack at the time his
petition is filed.” Maleng v. Cook, 490 U.S. 488, 490–91
(1989). Petitioner is “in custody” pursuant to his New Jersey
conviction despite being released on parole because parole
imposes restraints on parolees’ liberties that are not generally
shared by the public. Jones v. Cunningham, 371 U.S. 236, 240-41
(1963). However, § 2241 is not the appropriate statute for
Petitioner’s challenge to New Jersey’s future custody.
“It is a well-established canon of statutory construction
that when two statutes cover the same situation, the more
specific statute takes precedence over the more general one.”
Coady v. Vaughn, 251 F.3d 480, 484 (3d Cir. 2001). “Section
2254 supplies federal jurisdiction over habeas petitions filed
by the inmates challenging their state convictions or sentences,
or the execution of those state sentences, including the issues
of parole, term calculation, etc.” McKnight v. United States,
27 F. Supp. 3d 575, 579 (D.N.J. 2014). By contrast, § 2241
“‘confers habeas jurisdiction to hear the petition of a federal
prisoner who is challenging not the validity but the execution
of his sentence,’ for instance, by raising claims attacking the
Bureau of Prisons (‘BOP’) calculation of his prison term or
designation of his place of confinement if it yields a ‘quantum
of change’ in the level of his custody.” Id. (quoting Woodall
v. Fed. Bureau of Prisons, 432 F.3d 235, 241 (3d Cir. 2005)).
Although Petitioner alleges the detainer prevents him from
accessing BOP programs, see ECF No. 1 at 3, his habeas corpus
petition is not challenging any action by the BOP. Instead, he
asks the Court to vacate the NJSPB’s detainer. This kind of
habeas claim must be filed under § 2254. Accordingly, this
Court lacks jurisdiction under § 2241.
Whenever a civil action is filed in a court that lacks
jurisdiction, “the court shall, if it is in the interests of
justice, transfer such action . . . to any other such court in
which the action . . . could have been brought at the time it
was filed.” 28 U.S.C. § 1631. Petitioner is challenging a New
Jersey state order, and the NJSPB would be subject to this
Court’s jurisdiction in a habeas challenge under § 2254.
Although this Court would have jurisdiction under § 2254 to
consider Petitioner’s challenge, it declines to convert the §
2241 petition into a § 2254 petition at this time. A federal
district court may not grant relief from a state court order
“unless it appears that the applicant has exhausted the remedies
available in the courts of the State.” 28 U.S.C. §
2254(b)(1)(A). Petitioner alleges he wrote to the NJSPB and
requested to resolve his charges, but NJSPB “responded that no
action would be taken on such a request and that the detainer
would remain.” ECF No. 1 at 6. He claims to have no other
remedies available, but the New Jersey Superior Court, Appellate
Division permits appeals as of right “to review final decisions
or actions of any state administrative agency or officer . . .
.” N.J. Ct. R. 2:2-3(a)(2). The Court will not convert the §
2241 petition into a § 2254 petition as it appears Petitioner
has not exhausted all available state court remedies.
IV. CONCLUSION
For the foregoing reasons, the Court will dismiss the
petition for lack of jurisdiction. An appropriate order will be
entered.
Dated: June 6, 2022 s/ Noel L. Hillman
At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.