John Wilson, Jr. v. Secretary, Department of Corre, et al

Filing

Opinion issued by court as to Appellant John David Wilson, Jr.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 15-15609

Date Filed: 11/29/2017

Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-15609
Non-Argument Calendar
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D.C. Docket No. 8:15-cv-02084-VMC-EAJ

JOHN DAVID WILSON, JR.,
Petitioner-Appellant,
versus
SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 29, 2017)

Before JULIE CARNES, JILL PRYOR, and EDMONDSON, Circuit Judges.

Case: 15-15609

Date Filed: 11/29/2017

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PER CURIAM:

John David Wilson, Jr. -- a Florida prisoner here proceeding pro se -appeals the district court’s order dismissing his pro se motion, which the district
court construed as a petition for habeas relief, filed pursuant to 28 U.S.C. § 2254.
No reversible error has been shown; we affirm.
The procedural history pertinent to this appeal involves two state court
criminal proceedings. In state case No. 99-18481, Wilson pleaded guilty to
aggravated stalking; he was sentenced to five years’ community control.
In state case No. 00-12480, Wilson was convicted of attempted first-degree
murder and of aggravated battery. In October 2001, the state court sentenced
Wilson to life imprisonment for each of his two convictions, to run concurrently.
On the same day, the state court revoked Wilson’s probation in case No. 99-18481.
Wilson was then sentenced in No. 99-18481 to 60 months’ imprisonment, to run
concurrently with the life sentences imposed in case No. 00-12480.
In 2007, Wilson filed a pro se 28 U.S.C. § 2254 petition, seeking relief from
his convictions and concurrent life sentences in case No. 00-12480. In reviewing
Wilson’s 2007 petition, the district court noted expressly that Wilson raised no
challenge to his conviction in case No. 99-18481. The district court denied

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Wilson’s section 2254 petition. This Court then denied Wilson a certificate of
appealability.
In 2015, Wilson filed the pro se motion now at issue in this appeal. In his
motion -- which Wilson purported to file pursuant to Fed. R. Civ. P. 60(b) -Wilson sought relief from his conviction and 60-month sentence in case No. 9918481. The district court construed Wilson’s motion as a second or successive
section 2254 petition. Because Wilson had received no authorization to file a
second or successive habeas petition from this Court, the district court dismissed
without prejudice the petition for lack of jurisdiction.
We review de novo questions about the district court’s jurisdiction.
Zakrzewski v. McDonough, 490 F.3d 1264, 1267 (11th Cir. 2007). When
reviewing a motion filed by a pro se prisoner, we look behind the label of the
motion to determine whether the motion is cognizable under a different remedial
statutory framework. Gooden v. United States, 627 F.3d 846, 847 (11th Cir.
2010).
In his motion, Wilson sought to challenge the validity of his state conviction
for aggravated assault. Rule 60(b), however, is a rule of civil procedure and
provides no relief from a criminal judgment. See United States v. Mosavi, 138
F.3d 1365, 1366 (11th Cir. 1998). The district court thus construed properly
Wilson’s motion as a section 2254 petition for habeas relief. See Muhammad v.
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Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or
to particulars affecting its duration are the province of habeas corpus”).
The government concedes -- and we agree -- that Wilson’s petition is not
“second or successive.” In his 2007 habeas petition, Wilson challenged only his
conviction and sentences in case No. 00-12480. Because the section 2254 petition
at issue in this appeal is Wilson’s first collateral attack on his conviction in case
No. 99-18481, the petition is not subject to the limitation on “second or
successive” petitions.
Wilson’s petition is still subject to dismissal, however, because Wilson has
failed to satisfy the “in custody” requirement of 28 U.S.C. § 2241(c)(3). District
courts have jurisdiction over petitions for habeas relief only when the habeas
petitioner -- at the time his petition is filed -- is “in custody” under the conviction
or sentence he seeks to challenge. Maleng v. Cook, 490 U.S. 488, 491-92 (1989)
(interpreting the language in 28 U.S.C. § 2241(c)(3)). Once the sentence for a
conviction has fully expired, the petitioner is no longer “in custody” for purposes
of challenging that conviction. Id. at 491.
Here, Wilson began serving his 60-month sentence in case No. 99-18481 in
October 2001. When Wilson filed his construed section 2254 petition in 2015, his
60-month sentence had long since expired. Thus, Wilson was no longer “in

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custody” for purposes of challenging his conviction for aggravated stalking. See
id.
On appeal, Wilson argues that he satisfied the “in custody” requirement
because he is still serving a life sentence for his attempted murder conviction in
case No. 00-12480, which he contends is “positively and demonstrably related” to
his conviction in case No. 99-18481. Briefly stated, Wilson says he was compelled
to commit attempted murder after discovering that his plea in case No. 99-18481
was fraudulently obtained. We reject this argument. The relationship between
Wilson’s plea for aggravated stalking and his incarceration for attempted murder is
simply “too speculative and remote” to satisfy the statutory “in custody”
requirement. For background, see Van Zant v. Fla. Parole Comm’n, 104 F.3d 325,
327-28 (11th Cir. 1997), and Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir.
1979).
Because Wilson has failed to satisfy the statutory “in custody” requirement,
the district court lacked jurisdiction to entertain Wilson’s section 2254 habeas
petition. We affirm the dismissal.
AFFIRMED.

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