Madden v. Secretary, Department of Corrections et al
Filing
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OPINION AND ORDER. The Petition for Writ of Habeas Corpus 1 is DISMISSED for lack of jurisdiction. The Clerk is directed to terminate any pending motions and close this file. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, Petitioner is hereby DENIED a certificate of appealability and is not entitled to appeal in forma pauperis. Signed by Judge Charlene Edwards Honeywell on 7/10/2015. (BGS)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KENNETH MADDEN,
Petitioner,
-vs-
Case No. 8:15-cv-825-T-36AEP
SECRETARY, DEPARTMENT
OF CORRECTIONS,
Respondent.
____________________________/
ORDER
Petitioner, a federal prisoner incarcerated in a federal penitentiary and proceeding pro se,
initiated this action by filing a Petition for Writ of Habeas Corpus (“petition”) pursuant to 28 U.S.C.
§ 2254 challenging state convictions for trafficking in cocaine and possession of drug paraphernalia
entered in 2007 by the Thirteenth Judicial Circuit Court, Hillsborough County, Florida (Dkt. 1), and
a memorandum of law in support of the petition (Dkt. 2). The Court has undertaken the preliminary
review mandated by Rule 4, Rules Governing Section 2254 Cases, and concludes that the petition
is subject to summary dismissal because the Court is without jurisdiction to entertain the petition.
See Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999) (“A federal court is
obligated to inquire into subject matter jurisdiction sua sponte whenever it may be lacking.”).
DISCUSSION
In Green v. Price, 439 Fed. Appx. 777 (11th Cir. 2011) (unpublished), the Eleventh Circuit
Court of Appeals discussed the requirement that a petitioner be “in custody” at the time he files his
§ 2254 petition:
A district court has jurisdiction to entertain a § 2254 petition only if the petitioner is
“in custody pursuant to the judgment of a State court only on the ground that he is
in custody in violation of the Constitution or laws or treaties of the United States.”
28 U.S.C. § 2254(a). The “in custody” requirement means “that the 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). Generally, if the
petitioner’s state sentence has fully expired, he does not meet the “in custody”
requirement. Id. at 492, 109 S. Ct. at 1926. However, when the § 2254 petition can
be construed as asserting a challenge to the current state sentence that was enhanced
by an allegedly invalid prior state conviction, the petitioner is “in custody” for
purposes of federal habeas jurisdiction. Id. at 493-94, 109 S. Ct. at 1926-27; see also
Lackawanna Cnty. Dist Att’y v. Coss, 532 U.S. 394, 399-402, 121 S. Ct. 1567,
1571-73, 149 L. Ed. 2d 608 (2001) (concluding § 2254 petitioner satisfied “in
custody” requirement because the earlier state conviction he nominally sought to
challenge had been used to calculate his sentencing range for his later state
conviction).
Although such a § 2254 petitioner satisfies the “in custody” requirement, the
petitioner may not collaterally attack the prior expired state sentence unless the
petitioner alleges that the prior state conviction was obtained in violation of his Sixth
Amendment right to counsel announced in Gideon v. Wainwright, 372 U.S. 335, 83
S. Ct. 792, 9 L. Ed. 2d 799 (1963). Lackawanna, 532 U.S. at 404, 121 S. Ct. at 1574.
Additionally, the § 2254 petitioner seeking relief under the Lackawanna exception
must satisfy the procedural prerequisites for relief. Id.
Id. at 781-82.
According to the petition, Petitioner was convicted in state court of trafficking in cocaine and
possession of drug paraphernalia and sentenced to 60-months imprisonment on March 19, 2007
(Dkt. 1 at p. 1). And, the Court takes judicial notice of information contained on the Florida
Department of Corrections Offender Information Network, July 9, 2015, indicating that Petitioner
was released from the Department’s custody on February 20, 2010. See Fed. R. Evid. 201.
Therefore, because Petitioner’s sentence expired well before he filed the instant petition in April
2015, he was not ‘in custody’ under the convictions under attack at the time he filed the instant
petition. See Maleng, 490 U.S. at 490-91. Accordingly, this Court is without jurisdiction to
entertain Petitioner’s § 2254 petition. Id.
The Court notes that Petitioner does not contend that he is “in custody”for purposes of 28
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U.S.C. § 2254 because the state convictions were used to enhance the federal sentence he is
currently serving. However, even if he had made this argument, he cannot challenge the convictions
under § 2254. It is apparent from the petition and the memorandum that Petitioner was represented
by counsel during the state trial court proceedings (see Dkts. 1, 2). Therefore, Petitioner is not
entitled to attack his expired state convictions and sentences under the Gideon exception articulated
in Lackawanna. Green v. Price, 439 Fed. Appx. at 782. See also Jackson v. Sec’y for the Dep’t of
Corr., 206 Fed. Appx. 934, 937 (11th Cir. Fla. 2006) (although Jackson “met § 2254’s ‘in custody’
requirement” because “he explicitly alleged that [his expired state] conviction was used to enhance
the federal life sentence he was currently serving,” “Jackson was not entitled to attack his expired
conviction under the Gideon exception articulated in. . . Lackawanna” because it was “clear that
Jackson was represented by counsel during the trial court proceedings related to his prior expired
state court conviction and sentence.”).
Accordingly, it is ORDERED that:
1. The Petition for Writ of Habeas Corpus (Dkt. 1) is DISMISSED for lack of jurisdiction.
2. The Clerk is directed to terminate any pending motions and close this file.
3. Pursuant to Rule 11 of the Rules Governing Section 2254 Cases, Petitioner is hereby
DENIED a certificate of appealability because he cannot show “that jurists of reason would find it
debatable whether the petition states a valid claim of denial of a constitutional right, and that jurists
of reason would find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 478 (2000). Pursuant to Rule 22(b)(1) of the Federal Rules of
Appellate Procedure, Petitioner may request issuance of a certificate of appealability from the
Eleventh Circuit Court of Appeals. Finally, because Petitioner is not entitled to a certificate of
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appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida, on July 10, 2015.
Copy to: Petitioner pro se
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