UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
October 1, 2007
LARRY B. LINDSEY, PETITIONER,
LAURE KRUEGLER, ASSISTANT DISTRICT ATTORNEY, RESPONDENT.
The opinion of the court was delivered by: Gary L. Sharpe, United States District Judge
DECISION and ORDER
The Clerk has sent to the Court a petition for a writ of habeas corpus brought by Petitioner Larry B. Lindsey pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. Dkt. Nos. 1, 2, and 5.
The Petition appears to ask this Court to determine the legality of Lindsey's arrest in Rensselaer County. Dkt. No. 1 at 1. Petitioner claims that his arrest was without probable cause and therefore violates his Federal constitutional rights. Id.; see also Dkt. No. 2.
28 U.S.C. §2254 requires that this Court: ... shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court ... ." (emphasis supplied).
It is apparent from review of the petition that Lindsey is not in custody pursuant to a state court judgment of conviction. Rather, Lindsey is awaiting trial on a number of charges that were filed against him in Rensselaer County. Dkt. No. 1 at 2-4; see also Dkt. No. 6 at 2 (copy of letter from state court indicating that Petitioner's state court trial on the pending charges is scheduled for September 27-28, 2007). Clearly, Lindsey is not challenging a judgment of a state court on these criminal charges.
"On the facts presented the remedy petitioner seeks is not open to him. Section 2254 of Title 28 is inapplicable absent a judgment of the State Court." United States ex rel. Weston v. Nenna, 290 F.Supp. 42 (S.D.N.Y. 1968). Even if Lindsey could show that he was in custody pursuant to a judgment of state court, a section 2254 petition may only be heard by the federal courts after complete exhaustion of all state court remedies. 28 U.S.C. § 2254(b)(1)(A) (emphasis added).*fn1
Accordingly, this Court is without jurisdiction to entertain this petition.*fn2
Turning to Lindsey's in forma pauperis application, Lindsey has not paid the statutory filing fee of $5.00 concerning this proceeding. A review of Lindsey's in forma pauperis application reveals that Lindsey is unable to pay the fee. Therefore, Lindsey's in forma pauperis application is granted
WHEREFORE, it is hereby
ORDERED, that Lindsey's request to proceed in forma pauperis is granted, and it is further
ORDERED, that this action DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order on Lindsey in accordance with the Local Rules.
IT IS SO ORDERED.