Sumrall v. State Of Maryland

Filing 5

MEMORANDUM. Signed by Judge J. Frederick Motz on 3/4/2016. (c/m 3/4/16)(kr, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DAVID ALLEN SUMRALL,

•

Petitioner

•
•
•
•
•••

v

STATE OF MARYLAND,
Respondent

Civil Action No. JFM-15-267

MEMORANDUM
Respondent filed an Answer to the above-captioned petition alleging petitioner is no
longer "in custody" for purposes of habeas review. ECF 3. Petitioner has filed a Response.
ECF 4. The court finds a hearing in this matter unnecessary.]
On September 10, 1981, petitioner David Allen Sumrall ("Sumrall") pled guilty, in the
Circuit Court for Baltimore City, to one count of assault with intent to murder.

As a result,

Sumrall was sentenced to serve 30 years imprisonment and pay restitution. ECF 1-1, pp. 1-2;
ECF 3-1.

In apparent recognition

that the term in question has expired, Sumrall states,

"Although the original prison sentence has expired ..." and "The prison term is not an issue, since
it is over." ECF I, pp. 1 & 2. Sumrall challenges. the legality of the restitution order alleging it
constitutes an illegal sentence. Id., pp. 2-3.
Under 28 U.S.C.

S 2254(a)

"[t]he Supreme Court, a Justice thereof, a circuit judge, or a

district court shall entertain an application for a writ of habeas corpus in behalf of a person 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." (emphasis added).

] See Rule 8(a), Rules Governing Section 2254 Cases in the United States District Courts and Local Rule 105.6 (D.
Md. 2014); see also Fisher v. Lee, 215 F. 3d 438, 455 (4th Cir. 2000) (petitioner not entitled to a hearing under 28
U.S.C. 112254(e)(2».

Federal habeas relief is unavailable where a petitioner "suffers no present restraint from a
conviction."

See Maleng v. Cook, 490 U.S. 488, 492 (1989). Thus, where a sentence has fully

expired, the custody requirement is not satisfied and this court has no jurisdiction to consider the
claims raised. [d. at 490, see also, Lackawana County Dist. Attorney v. Coss, 532 U.S. 394, 401
(200 I) (recognizing

that "in custody" requirement

precluded defendant no longer serving

sentence imposed on 1986 convictions from bringing federal habeas petition directed solely at
those convictions).
A challenge to an order of restitution, such as Sumrall raises here, does not satisry the
custody requirement of 92254(a). See Bailey v. Hill 599 F.3d 976, 979 (9th Cir. 2010) (holding
liability under a restitution order is like a fine-only conviction and is not a serious restraint on
liberty as to warrant habeas relief); Tinder v. Paula, 725 F.2d 801, 804 (1st Cir. 1984) (same);
Washington v. Smith, 564 F.3d 1350, 1350-51 (7th Cir. 2009) (holding petitioner's

attack on

counsel's handling of restitution amount does not state a cognizable claim under 92254); Obado
v. New Jersey, 328 F. 3d 716, 718 (3d Cir. 2003) (restitution payments made by petitioner after
completion of sentence did not satisry "custody" requirement under 92254(a)). As Sumrall is not
in custody for purposes of the habeas statute, his petition shall be dismissed.
When a district court dismisses a habeas petition solely on procedural

grounds, a

certificate of appealability will not issue unless the petitioner can demonstrate both "(I) 'that
jurists of reason would find it debatable whether the petition states a valid claim of the denial of
a constitutional right' and (2) 'that jurists of reason would find it debatable whether the district
court was correct in its procedural ruling.''' Rouse v. Lee, 252 F.3d 676, 684 (4th Cir. 2001)
(quoting Slack v. Daniel, 529 U.S. 473, 484 (2000)).

2

Sumrall has not met this standard.

By

separate Order which follows the petition for writ of habeas corpus shall be dismissed and a
Certificate of Appealability denied.

i~

J. Frederick Motz -----

IUnited States District Judge

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