HOUGH v. STATE OF NORTH CAROLINA

Filing 2

ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOI ELIZABETH PEAKE on 07/09/2013, that in forma pauperis status is granted for the sole purpose of entering this Order and Recommendation.RECOMMENDED that this action be dismissed sua sponte pursuant to Rule 4, Rules Governing Section 2254 Cases.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
JONATHAN TYRONE HOUGH,

)
)
Petitioner, )
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v.
)
)
STATE OF NORTH CAROLINA,
)
)
Respondent. )

1:13CV238

ORDER AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a federal prisoner who was formerly a prisoner of the State of North
Carolina, has submitted a Petition [Doc. #1] under 28 U.S.C. § 2254 for a writ of habeas
corpus by a person in state custody. Upon review of the matter, the undersigned concludes
that the case should be dismissed for the following reasons. Rule 4, Rules Governing Section
2254 Proceedings, states:
If it plainly appears from the petition and any attached exhibits that the
petitioner is not entitled to relief in the district court, the judge must dismiss
the petition and direct the clerk to notify the petitioner.
A writ of habeas corpus may issue if a petitioner demonstrates that he is in state custody in
violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a).
Under 28 U.S.C. §§ 2241(c)(3) and 2254(a) the federal courts have jurisdiction to entertain
applications for habeas corpus only if the petitioner is “in custody.” The custody requirement
of § 2254 is not met when the prisoner is challenging an expired state sentence, even if the

expired sentence has enhanced a current sentence. See Maleng v. Cook, 490 U.S. 488, 492
(1989). If a petitioner is no longer in custody on the challenged conviction, the Court lacks
subject matter jurisdiction in the case. Id. at 494.
In this case, Petitioner seeks to attack convictions from the Guilford County Superior
Court in cases 93-CRS-64952 and -64953, which Petitioner reports were entered on July 11,
1994. [Petition, §§ 1- 2.] He states that he was sentenced to fifteen years of imprisonment.
[Id., § 3.] Taking all of the facts alleged by Petitioner as being true, it appears that he is not
currently in custody on the convictions he seeks to challenge. Further, the information
supplied in the Petition is confirmed by the North Carolina Department of Public Safety’s
website, which reports that “Jonathan Tyrone Hough” was convicted on July 11, 1994 in
Guilford County in case “93064952” and sentenced to a maximum of fifteen years. He was
released from that sentence on October 3, 1999. See http://www.doc.state.nc.us/offenders
(search for “Jonathan T. Hough” last completed July 8, 2013). Therefore, the State’s records
confirm that Petitioner is no longer serving any sentence for the convictions he challenges.1
For this reason, he does not meet § 2254’s custody requirement. Therefore, the Court lacks
jurisdiction over this habeas petition because Petitioner has not satisfied the custody
requirement.

1

In 2001, Petitioner was indicted in this Court in case 1:01CR107-1 on drug and weapons charges. He
remains in federal custody after pleading guilty in that case. To the extent Petitioner has filed in that case a Motion
under 28 U.S.C. § 2255 raising issues regarding, inter alia, Petitioner’s prior state convictions, those matters will be
considered to the extent necessary as part of that § 2255 proceeding.

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In forma pauperis status will be granted for the sole purpose of entering this order and
recommendation.
IT IS THEREFORE ORDERED that in forma pauperis status is granted for the sole
purpose of entering this Order and Recommendation.
IT IS RECOMMENDED that this action be dismissed sua sponte pursuant to Rule 4,
Rules Governing Section 2254 Cases.
This, the 9th day of July, 2013.

/s/ Joi Elizabeth Peake
United States Magistrate Judge

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