BLD-260                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                        No. 10-2029


                                    MIGUEL DURAN,
                                                         Appellant,
                                             v.

                             WARDEN SEAN THOMAS
                        __________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                               (D.C. Civ. No. 10-cv-000294)
                      District Judge: Honorable Renée Marie Bumb
                      ____________________________________

                    Submitted for Possible Summary Action Pursuant
                       to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    August 5, 2010

           Before: RENDELL, CHAGARES and VANASKIE, Circuit Judges

                              Opinion filed: August 27, 2010


                                         OPINION




PER CURIAM

       Appellant Miguel Duran, who was incarcerated pretrial at the Atlantic County

(New Jersey) Justice Facility, filed a petition for writ of habeas corpus, challenging his

detention by the Atlantic City Municipal Court on a controlled substances violation.
Duran claimed in his petition that he was subjected to a warrantless arrest on December

26, 2009 pursuant to Complaint No. W2009-0090870/02, and detained for 14 days

without a probable cause hearing in violation of his rights under the Fourth and

Fourteenth Amendments. Duran sought dismissal of the charges and release from

custody. He also claimed that the court imposed excessive bail in the amount of $85,000

in violation of the Eighth Amendment. Duran later supported his habeas corpus petition

with a memorandum of law, in which he observed that his detention without a hearing

had increased to 38 days.

       The District Court assumed jurisdiction over Duran’s petition pursuant to 28

U.S.C. § 2241 and Moore v. DeYoung, 515 F.2d 437, 441-42 (3d Cir. 1975). In an order

entered on March 17, 2010, the court summarily dismissed the petition for failure to

exhaust state remedies and lack of extraordinary circumstances. See id. at 443 (section

2241 jurisdiction without exhaustion at the pretrial stage should only be exercised where

extraordinary circumstances are present). On May 4, 2010, Duran filed a post-judgment

letter/motion for leave to amend under Federal Rule of Civil Procedure 15.1

Misunderstanding the District Court’s original decision regarding jurisdiction, Duran




   1
     The motion was dated March 19, 2010 and the evidence of record indicates that it
was mailed on that date. A pro se prisoner's motion for reconsideration may be deemed
filed at the time it is delivered to prison authorities for mailing. Smith v. Evans, 853 F. 2d
155, 161 (3d Cir. 1988). See also Ahmed v. Dragovich, 297 F.3d 201, 207-08 (3d Cir.
2002) (liberality of Rule 15 “is no longer applicable once judgment has been entered. At
that stage, it is Rules 59 and 60 that govern the opening of final judgments.”).

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sought to amend his petition in order to seek habeas corpus relief under section 2241

rather than 28 U.S.C. § 2254. On April 5, 2010, Duran filed a notice of appeal. In an

order entered on July 12, 2010, the District Court denied the post-judgment motion.

Repeating its original reasoning, the court concluded that jurisdiction was proper under

28 U.S.C. § 2241, but Duran had not exhausted his state remedies. Therefore, under

Moore, 515 F.2d at 443, he would have to show extraordinary circumstances and he had

not done so. Accordingly, there was no basis for the court to change its original decision,

see Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985) (purpose of motion for

reconsideration is to correct manifest errors of law or fact or to present newly discovered

evidence).

       On appeal, our Clerk advised Duran that his appeal was subject to summary

affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit

argument in writing, and he has done so. We have reviewed that submission.

       We have jurisdiction under 28 U.S.C. § 1291 and Fed. R. App. Pro. 4(a)(4)(B)(i)

(if party files notice of appeal after court enters judgment but before it disposes of motion

for reconsideration notice becomes effective when order disposing of such motion is

entered). Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may summarily dispose of

an appeal when it clearly appears that no substantial question is presented by the appeal.

Our review is plenary. United States v. Thompson, 70 F.3d 279, 280-81 (3d Cir. 1995).

       We will summarily affirm the order of the District Court because no substantial



                                              3
question is presented by this appeal. As explained by the District Court in its original and

subsequent opinions, section 2241 authorizes a federal court to issue a writ of habeas

corpus to any pretrial detainee who “is in custody in violation of the Constitution or laws

or treaties of the United States,” Moore, 515 F.2d at 442 n.5 (quoting 28 U.S.C. § 2241).

Nevertheless, that jurisdiction must be exercised sparingly in order to prevent in the

ordinary circumstance “pre-trial habeas interference by federal courts in the normal

functioning of state criminal processes.” Id. at 445-46. Upon careful review of the

record, we conclude that Duran’s habeas corpus petition does not present any

extraordinary circumstances and is an attempt “to litigate constitutional defenses

prematurely in federal court,” id. at 445.

       Duran has not exhausted his state remedies and he alleged nothing in his petition to

suggest that his warrantless arrest was unique. In Moore, we held that there was nothing

in the nature of the speedy trial right to qualify it as a per se extraordinary circumstance

that warranted dispensing with the exhaustion requirement. See id. at 446. Similarly,

there is nothing in the nature of Duran’s warrantless arrest for a controlled substances

violation to qualify it for pre-trial, pre-exhaustion habeas corpus relief. See generally

State v. Dolly, 605 A.2d 238, 242 (N.J. Super. Ct., App. Div. 1991) (discussing when

search of defendant’s person is valid as incident to arrest); State v. Sessions, 412 A.2d

1325, 1331 (N.J. Super. Ct., App. Div. 1980) (same).

       For the foregoing reasons, we will summarily affirm the order of the District Court



                                              4
dismissing Duran’s habeas corpus petition.




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