RHODES v. FLEMING et al

Filing 25

ENTRY: Because Rhodes cannot meet this requirement as to the Howard County conviction, and because this is apparent from the face of his petition for writ of habeas corpus, that petition is denied and this action will be dismissed for lack of jurisdiction. Judgment consistent with this Entry shall now issue. The court therefore denies a certificate of appealability ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 8/25/2015. Copy sent via US Mail.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

TRACEY RHODES,
Petitioner,
v.
INDIANA ATTORNEY GENERAL
GREG ZOELLER,
Respondent.

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Case No. 1:15-cv-1067-WTL-TAB

Entry Dismissing Action and Directing Entry of Final Judgment
I.
Tracy Rhodes was convicted of four counts of sexual misconduct in Howard County in No.
34D02-0602-FC-0036. This is referred to hereafter as “the Howard County conviction.” He was
sentenced for such offenses on November 14, 2007. Rhodes has now filed a petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254(a).
Rhodes’ motion to correct the caption [dkt 24] is denied as unnecessary because the proper
caption was discussed and established in the Entry of August 11, 2015.
The court is obliged to conduct a preliminary review of the habeas petition pursuant to
pursuant to Rule 4 of the Rules Governing Section 2254 Proceedings in the United States District
Courts. Having conducted such review, and considering Rhodes’ habeas petition and his filing of
August 12, 2015, the court concludes that jurisdiction is absent.
In any case brought in federal court, the plaintiffs' first hurdle is showing that the court has
jurisdiction to decide the merits of the case. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341–
42 (2006). “The first showing a § 2254 petitioner must make is that he is ‘in custody pursuant to

the judgment of a State court.’ 28 U.S.C. § 2254(a).” Lackawanna County Dist. Atty. v. Coss, 532
U.S. 394, 401 (2001). The statutory “in custody” requirement is jurisdictional. Maleng v. Cook,
490 U.S. 488, 490 (1989) (per curiam).
“As a general matter, if a petitioner ‘is no longer serving the sentences imposed pursuant
to’ the conviction challenged in a petition, he ‘cannot bring a federal habeas petition directed
solely at’ that conviction.” Stanbridge v. Scott, 791 F.3d 715, 718 (7th Cir. 2015)(quoting
Lackawanna Cnty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001). Rhodes cannot satisfy the
“in custody” requirement as just explained because he has fully served the sentence for the
Howard County conviction. Id. at 719 (“a habeas petitioner is not ‘in custody’ pursuant to a
particular conviction unless his physical liberty of movement is limited in a non-negligible way,
and that limitation is a direct consequence of the challenged conviction”).
Rhodes offers two reasons why he believes he satisfies the “in custody” requirement of
the federal habeas statute. The first is that he is subject to a lifetime requirement of registration as
a sex offender. This argument cannot be supported. It is the consensus of courts who have
considered this point that such a requirement is not in itself sufficient to established custody. This
is because “courts have rejected uniformly the argument that a challenge to a sentence of
registration under a sexual offender statute is cognizable in habeas.” Virsnieks v. Smith, 521 F.3d
707, 718 (7th Cir. 2008)(citing cases). The second is that Rhodes is currently facing a new charge
in Madison County of failing to register as a sex offender. He release on bond in relation to that
the and pending charge is doubtless a form of custody as to the pending charge, but does not
amount to custody on the fully-served sentence for the Howard County conviction. Evans v.
Unknown Party, No. 15-CV-634-DRH, 2015 WL 4111444, at *2 (S.D.Ill. July 7, 2015).
“The Supreme Court has interpreted the ‘in custody’ language as requiring that the habeas

petitioner be ‘in custody’ under the conviction or sentence under attack at the time his petition is
filed.” Martin v. Deuth, 298 F.3d 669, 671 (7th Cir. 2002) (citation omitted). Because Rhodes
cannot meet this requirement as to the Howard County conviction, and because this is apparent
from the face of his petition for writ of habeas corpus, that petition is denied and this action will
be dismissed for lack of jurisdiction.
II.
Judgment consistent with this Entry shall now issue.
III.
Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules Governing

' 2254 Proceedings, and 28 U.S.C. ' 2253(c), the court finds that Rhodes has failed to show that
reasonable jurists would find it Adebatable whether [this court] was correct in its procedural ruling.@
Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court therefore denies a certificate of
appealability.
IT IS SO ORDERED.
_______________________________
Date: 8/25/15

Distribution:
TRACEY RHODES
7511 N. 140 E.
Alexandria, IN 46001

Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana