Lee v. Cain
ORDER ADOPTING REPORT AND RECOMMENDATIONS 26 with clarifications as set forth in document; ORDERED that the petition of Charles Lee for issuance of a writ of habeas corpus under Title 28 U.S.C. 2254, is hereby DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier on 5/30/13.(sek, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
SECTION "J" (4)
O R D E R
Before the Court is Petitioner Charles Lee’s objection (Rec.
Doc. 27) to the Report and Recommendation of the United States
Magistrate Judge (Rec. Doc. 26). Having reviewed the objection, the
Report and Recommendation of the United States Magistrate Judge,
Petitioner’s objection should be OVERRULED and that the Report and
Recommendation of the Magistrate Judge should be ADOPTED with the
The Magistrate Judge’s Report and Recommendation found that
Petitioner is not “in custody” for the purposes of habeas review,
because his sentence for the 1997 conviction he is challenging has
fully expired. In making this determination, the Magistrate Judge
relied on the United State Supreme Court’s decision of Maleng v.
Cook, 490 U.S. 488 (1989). In Maleng, the Court noted that it had
“never held . . . that a habeas petitioner may be ‘in custody’
under a conviction when the sentence imposed for that conviction
has fully expired at the time his [habeas] petition is filed.” 490
U.S. at 490. Subsequent to Maleng, the Supreme Court also decided
Lackawanna County District Attorney v. Cross, 532 U.S. 394 (2001),
which applied Maleng’s principles and holding directly to 28 U.S.C.
§ 2254 cases.1 The Magistrate Judge also cites to Lackawanna in her
Report and Recommendation.
In Lackawanna, the Court explained that a petitioner would
not be found to be “in custody” merely because the prior expired
conviction for which he was seeking relief was used to enhance a
subsequent sentence that a petitioner was serving. 532 U.S. at 401.
However, the Court also acknowledged that where a petition could be
read as asserting a challenge to the subsequent conviction or
sentence, rather than just the prior expired conviction, then the
Petitioner might be found to be “in custody.” Id. In both Maleng
and Lackawanna, the Court found that the petitions in question
could be construed as asserting an attack on the subsequent
enhanced sentence (not solely the expired conviction that provided
the enhancement); therefore, the Court found that the petitioners
Petitioner in the instant case has requested relief under 28 U.S.C. §
in those cases could be deemed to be “in custody.” See id.
In the instant case, Petitioner is currently incarcerated in
the Louisiana State Penitentiary in Angola, Louisiana. He serving
concurrent prison sentences of 49 ½ years for a 1998 conviction on
charges of armed robbery while in possession of a firearm or
dangerous weapon. Petitioner’s current sentence was enhanced by a
conviction that he obtained in 1997.2 In his petition, Petitioner
clearly explains that he is challenging his 1997 conviction for
possession of stolen property over $500.00. Rec. Doc. 2. Likewise,
in his objection, Petitioner specifically states that he is not
attacking his current sentence, but rather, only his prior 1997
conviction.3 In fact, Petitioner himself states that his case is
distinguishable from Lackawanna because he “is not under the scope
of review as a petitioner whom is attacking a current sentence.”
Petitioner’s petition cannot be construed as an attack on the
sentence he is currently serving for his 1998 conviction, but only
as an attack on his 1997 conviction. Because the conviction has
Rec. Doc. 26, p. 2 (“The 1997 possession of a stolen automobile
conviction was used in the multiple bill filed in the  case. In that case,
Lee is now serving concurrent prison sentences of 49 ½ years as a second offender
. . . .”).
Rec. Doc. 27, p. 3 (“Lee has made it clear, as the Judge has stated in
pg. 6 of the R & R, that he is not attacking his current sentence.”).
expired,4 Petitioner is not “in custody” for the purposes of habeas
Furthermore, the Court also finds that the Magistrate Judge’s
alternative finding that Petitioner’s habeas claim is time barred
is also correct. The Court ADOPTS that section of her report as the
Court’s opinion in this matter without any clarifications or
IT IS ORDERED that the petition of Charles Lee for issuance of
a writ of habeas corpus under Title 28 U.S.C. § 2254, is hereby
DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 30th day of May, 2013.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
See Rec. Doc. 26, pp. 8-9 (explaining why Petitioner’s 1997 conviction
The Court notes that in his objection, Petitioner argues that he is “in
custody” for the purposes of habeas jurisdiction because there is a “demonstrable
nexus” between his current conviction and the expired conviction that he is
actually challenging in his petition. Petitioner bases his objection on Young
v. Lynaugh, 821 F.2d 1133 (5th Cir. 1987) and Willis v. Collins, 989 F.2d 187
(5th Cir. 1993). While this Court notes that both Young and Willis do stand for
the principle espoused by Petitioner, it points out that in Hendrix v. Lynaugh,
888 F.2d 336 (5th Cir. 1989), the Fifth Circuit specifically recognized that the
Young custody test was “no longer viable in light of” the Supreme Court’s
decision in Maleng.
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