LaPine #305535 v. Smith

Filing 8

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 5 , dismissing petition for writ of habeas corpus with prejudice, and denying a certificate of appealability; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

D A R R IN LAPINE, Petitioner, F ile No. 1:08-CV-670 v. HON. ROBERT HOLMES BELL W I L L IE O. SMITH, R e sp o n d e n t. / O R D E R ADOPTING REPORT AND RECOMMENDATION AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS T h is matter is before the Court on a Petitioner Darrin LaPine's objections to the M a g is tra te Judge's September 2, 2008, Report and Recommendation ("R&R") re c o m m e n d in g that Petitioner's § 2254 petition for writ of habeas corpus be dismissed with p rejud ice pursuant to Rule 4 of the Rules Governing § 2254 Cases, because it plainly appears f ro m the petition and the attached exhibits that the Court lacks subject-matter jurisdiction. (D k t. No. 5.) Petitioner filed objections to the R&R on September 10, 2008, and a motion to expand the record. (Dkt. Nos. 6, 7.) This Court is required to make a de novo determination of those portions of the R&R to which objection has been made, and may accept, reject, or modify any or all of the M a g is tra te Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 7 2 (b ).

Section 2254 authorizes a person "in custody" pursuant to a state court judgment to f ile an application for a writ of habeas corpus. 28 U.S.C. § 2254(a). The R&R recommends d is m is s a l of Petitioner's § 2254 petition because Petitioner is no longer "in custody" pursuant to the 2000 convictions that he is attacking through the instant habeas petition. See L a c k a w a n n a County Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001). P e titio n e r objects to the R&R because he contends that he still owes restitution on his 2 0 0 0 conviction. In addition, Petitioner asserts in his recently filed motion to expand the re c o rd that the 2000 conviction was used to enhance his current sentence, that the 2000 c o n v ic tio n continues to negatively affect his eligibility for camp and parole, and that the 2000 c o n v ic tio n could be used to enhance him as a habitual offender if he were convicted in the f u t u re . (Mot. to Expand Record 2.) Petitioner cites Spencer v. Kemna, 523 U.S. 1, 14-16 (1 9 9 8 ), in support of the proposition that a prisoner who has completed his sentence can c h a llen g e his conviction in habeas corpus because of collateral consequences that survive his re le a se ." Id. at 14-16. T h e fact that the 2000 conviction continues to have collateral consequences does not s u g g e st that Petitioner is still "in custody" such that this Court can exercise jurisdiction over h is petition. The Supreme Court noted in Maleng v. Cook, 490 U.S. 488, 491-92 (1989), that it had "never held . . . that a habeas petitioner may be `in custody' under a conviction when th e sentence imposed for that conviction has fully expired at the time his petition is filed." M a le n g v. Cook, 490 U.S. 488, 491 (1989)). See also Gavin v. Wells, 914 F.2d 97, 98 (6th

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C ir. 1990) (holding that because the petitioner had fully served his 1955 conviction, the court h ad no jurisdiction to consider his argument that the 1955 conviction was unconstitutional). T h e collateral consequences cases on which Petitioner relies are all premised on the p e titio n e r being in custody for the conviction or sentence he is challenging. For example, in S p e n c er the petitioner was incarcerated by reason of the challenged parole revocation at the tim e the petition was filed. 523 U.S. at 7. Similarly, in Lackawanna, the petitioner was c h a lle n g in g the enhancement of his current (1990) sentence. 532 U.S. at 401. The Supreme C o u r t held in that case that the petitioner satisfied § 2254's "in custody" requirement because h is § 2254 petition "can be (and has been) construed as `asserting a challenge to the [1990] s e n te n [ ce ], as enhanced by the allegedly invalid prior [1986] conviction.'" 532 U.S. at 40102. In contrast to Spencer and Lackawanna, Petitioner in this case is not challenging the e n h a n ce m e n t of the sentence he is currently serving on his 2001 conviction. He cannot c h a lle n g e his 2001 conviction because, as noted in the R&R, Petitioner's 2001 conviction w a s the subject of a previous § 2254 petition. LaPine v. Renico, File No. 2:03-CV-282 (W .D . Mich.). Accordingly, even under a liberal construction of Petitioner's pro se habeas p e t itio n , the only conviction Petitioner is challenging is his 2000 conviction. Because P e titio n e r has fully served his 2000 conviction, this Court has no jurisdiction to consider his a rg u m e n t that the 2000 conviction was unconstitutional. In addition, even if Petitioner were "in custody" pursuant to the 2000 conviction, his

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p e titio n was not timely filed. Petitioner contends his claim is timely because it relies on a c o n stitu tio n a l right newly recognized by the Supreme Court in Halbert v. Michigan, 545 U.S. 6 0 5 (2005). See 28 U.S.C. § 2244(d)(1)(C) (providing that the 1-year period of limitation f o r § 2254 petitions can be measured from the date on which the constitutional right asserted w a s newly recognized and made retroactive by the Supreme Court). However, contrary to P e titio n e r's contentions, the ruling in Halbert does not apply retroactively to cases on c o lla te ra l habeas corpus review. Simmons v. Kapture, 516 F.3d 450, 451 (6th Cir. 2008). A c c o r d i n g l y, I T IS HEREBY ORDERED that Petitioner's objections to the Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. Nos. 6, 7) are DENIED. I T IS FURTHER ORDERED that the September 2, 2008, Report and R e c o m m e n d a tio n of the Magistrate Judge (Dkt. No. 5) is APPROVED and ADOPTED as th e opinion of the Court. I T IS FURTHER ORDERED that Petitioner's petition for writ of habeas corpus ( D k t . No. 1) is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that a certificate of appealability is DENIED. Slack v . McDaniel, 529 U.S. 473 (2000).

Dated: November 25, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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