Mikell Jr. v. Ebbert

Filing 32

ORDER adopting Report and Recommendations re 27 Report and Recommendations; granting 15 Motion to Dismiss. Signed by Judge B. Avant Edenfield on 01/30/2012. (lmm)

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IN THE UNITED STATES DISTRICT COURT 2012 J1J 30 AM 37
FOR THE SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
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BOB AARON MIKELL, JR.,
Petitioner,
V.

CIVIL ACTION NO.: CV6II-047

DAVID J. EBBERT, Warden, and
SAMUEL S. OLENS, Attorney
General,
Respondents.

ORDER

Petitioner Bob Aaron Mikell ("Mikell") filed a document titled Petitioner's
Opposition to the Government's Response and a document titled Addendum to
Petitioner's Opposition. (Doc. Nos. 29 and 30). The Court has construed these
documents as objections to the Magistrate Judge's Report dated January 3, 2012, (Doc.
No. 27), which recommended that Respondents' Motion to Dismiss be granted and that
Mikell's § 2254 petition be dismissed.
Mikell argues, in his "objections," that the Magistrate Judge erred in
recommending dismissal of his § 2254 petition. MikelI previously agreed that he was
not "in custody", pursuant to the conviction which he challenges. (Doc. Nos. 19, p.1 and
20, p. 4). Now, Mikell has changed his position asserting that Lackawanna County
District Attorney V. Coss, 532 U.S. 394 (2001), applies to his case.

AO 72A
(Rev. 8182)

The Supreme Court in Coss noted that, in Malençi v. Cook, 490 U.S. 488 (1989),
it determined that a prisoner "in custody" under a state sentence enhanced by a prior
expired state sentence met the "in custody" requirement of § 2254 when the § 2254
petition challenged the prior expired state sentence.' Coss, 532 U.S. at 401-02. This
was because the § 2254 petition challenging the prior expired, and allegedly
unconstitutional, state sentence could be read as asserting a challenge to the
subsequent enhanced state sentence. Id. However, the Court was careful to note that
in Malen g it determined that the petitioner was "in custody" under the subsequent
enhanced state sentence and not the expired state sentence being challenged. j4.
Applying Malen g , the Court determined that Coss satisfied the § 2254 "in custody"
requirement for the same reason. Id. at 402.
Mikell argues that Coss applies to his case, but the Court disagrees. In Coss,
the expired, and allegedly unconstitutional, state conviction allegedly enhanced a
subsequent state sentence. In the instant petition, Mikell's expired, and allegedly
unconstitutional, state conviction apparently enhanced a subsequent federal sentence.
The difference is crucial.
The Supreme Court, in Coss and Malen g , found that the petitioners were "in
custody" under the subsequent state sentence, allowing them to challenge the prior
expired state sentence. This was because the § 2254 petition challenging the prior
expired, and allegedly unconstitutional, state sentence could be read as asserting a

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In Maleng , the petitioner also alleged that his prior expired, and allegedly unconstitutional, state
sentence had been used to enhance his federal sentence which he was serving at the time of the filing of
the § 2254 petition. The Supreme Court did not consider this argument, as it was not before them.
Instead, the Supreme Court only considered the enhancement of subsequent state convictions, which the
petitioner had not yet begun to serve, but under which the Supreme Court found the petitioner "in
custody." Malen g , 490 U.S at 490.
AO 72A
(Rev. 8182)

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challenge to the subsequent enhanced state sentence. As a result, the petitioners in
Coss and Maleng met the "in custody" requirement of § 2254. The purpose of § 2254 is
to allow petitioners to challenge state sentences for which they are in custody. Because
Mikell's expired state sentence enhanced a subsequent federal sentence, a direct
application of Coss would result in a finding that Mikell's § 2254 petition challenging his
prior expired, and allegedly unconstitutional, state sentence is a challenge to his
subsequent federal sentence. Section 2254 is not an avenue for relief in challenging a
federal sentence. As a result, Coss does not apply to Mikell's case.
Because Mikell's probation sentence for his 1997 state court conviction expired
in 2000, Mikell is not "in custody" under that conviction and he was not "in custody"
under that conviction when he filed the instant § 2254 petition in May 2011.
Mikell's "objections" to the Magistrate Judge's Report are without merit and are
overruled. The Report and Recommendation of the Magistrate Judge is adopted as
the Opinion of the Court. Respondent's Motion to Dismiss is GRANTED. Mikell's 28
U.S.C. § 2254 petition is DISMISSED. The Clerk of Court is directed to enter the
appropriate judgment of dismissal.
SO ORDERED, this

day of

2012.

, J^GE
UNITED STATES D yD
STRICT COURT
SOUTHERN DISTIL CT OF GEORGIA
B. AVANTEDENFIE

AO 72A
(Rev. 8/82)

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