United States District Court, S.D. Indiana, Indianapolis Division
ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DENYING CERTIFICATE OF APPEALABILITY
WALTON PRATT, JUDGE UNITED STATES DISTRICT COURT
reasons explained in this Entry, Petitoner Walker
Whatley's the Petition for Writ of Habeas Corpus must be
dismissed for lack of jurisdiction. In addition, the Court
finds that a certificate of appealability should not issue.
all habeas corpus proceedings under 28 U.S.C. § 2254,
the successful petitioner must demonstrate that he ‘is
in custody in violation of the Constitution or laws or
treaties of the United States.'” Brown v.
Watters, 599 F.3d 602, 611 (7th Cir. 2010) (quoting 28
U.S.C. § 2254(a)). “Custody” is an essential
element of habeas corpus relief. This requirement of
“custody” is jurisdictional. Carafas v.
LaVallee, 391 U.S. 234, 238 (1968); United States ex
rel. Dessus v. Common of Penn, 452 F.2d 557, 559-60 (3rd
Cir. 1971) (“the sine qua non of federal
habeas corpus jurisdiction is that petitioner be ‘in
custody'”), cert. den., 409 U.S. 853
(1972). More specifically, subject matter jurisdiction over
habeas petitions exists only where, at the time the petition
is filed, the petitioner is “in custody” under
the conviction challenged in the petition. Maleng v.
Cook, 490 U.S. 488, 490-91 (1989). A habeas petitioner
does not remain “in custody” once the sentence
imposed for the conviction has “fully expired.”
Id. at 491; see also Martin v. Deuth, 298
F.3d 669, 671 (7th Cir. 2002) (quoting Maleng, 490
U.S. at 490).
the petitioner is “in custody” is evaluated at
the time the habeas petition is filed. Levya v.
Williams, 504 F.3d 357, 363 (3d Cir. 2007). Once the
petitioner has fully served a state-imposed sentence, he can
no longer satisfy the “in custody” jurisdictional
requirement. Lackawanna Cnty. Dist. Attn'y v.
Coss, 532 U.S. 394, 401 (2001). However, a petitioner in
custody under a series of consecutive sentences may seek
federal habeas relief from any of those sentences, including
sentences that have already run. See Garlotte v.
Fordice, 515 U.S. 39, 40-41, 47 (1995); Peyton v.
Rowe, 391 U.S. 54, 64-65 (1978). The Court has explained
that “consecutive sentences should be treated as a
continuous series.” Garlotte, 515 U.S. at 40
(citing Peyton, 391 U.S. at 65).
foregoing principles are easily applied in this case. Whatley
was convicted of possession of cocaine and a firearm in the
Marion Superior Court in 2002. He was later convicted in the
same court, of a separate offense of possession of cocaine,
in 2008. Whatley was discharged from custody on the 2002
conviction in October 2010. In this action, Whatley
challenges his 2002 conviction. The instant Petition for Writ
of Habeas Corpus was filed on January 15, 2016. The date this
action was filed is the critical date for determining whether
Whatley satisfies the “in custody” requirement
under the federal habeas statute. Unfortunately for Whatley,
he does not meet that requirement because his sentence for
the 2002 drug offense expired long before this action was
filed. The fact that Whatley was serving the sentence imposed
for the 2008 offense when this action was filed in January
2016 is not determinative. The sentences for the 2002
conviction and the 2008 conviction were not ordered to be
consecutively. (Dkts. 18-1 and 18-2).
Whatley's 2008 sentence may have been lengthened because
of the 2002 conviction, it does not affect his “in
custody” calculation. The Seventh Circuit has explained
the law as follows:
Maleng holds that when sentence A has expired but
has been used to augment sentence B, the prisoner is
“in custody” only on sentence B. The consequences
of sentence A for sentence B do not yield continued
“custody” on sentence A, the Court
concluded. [However, ] a person in custody on sentence B may
contend that that custody violates the Constitution if it was
augmented because of an invalid sentence A . . . . Whether
the federal court with jurisdiction over the custodian
holding the prisoner on sentence B may inquire into the
validity of sentence A is a matter of comity and the rules of
preclusion, not of “custody.”
Stanbridge v. Scott, 791 F.3d 715, 721 (7th Cir.
2015) (quoting Crank v. Duckworth, 905 F.2d 1090,
1091 (7th Cir. 1990)). Therefore, the Seventh Circuit
explained, a federal court “would have jurisdiction
over [a] petition [challenging sentence B].”
Id. However, the court “would be barred from
addressing the merits of [the petitioner's] claim that
his [sentence B] is predicated on an invalid prior
conviction. That is because the question that [the Seventh
Circuit] left open in Crank-‘[w]hether the
federal court with jurisdiction over the custodian holding
the prisoner on sentence B may inquire into the validity of
sentence A'-was definitively answered in the negative by
the United States Supreme Court in . . .
Coss.” Id. In Coss, the
Supreme Court “held that ‘once a state conviction
is no longer open to direct or collateral attack in its own
right because the defendant failed to pursue those remedies
while they were available (or because the defendant did so
unsuccessfully), the conviction may be regarded as
conclusively valid.'” Stanbridge, 791 F.3d
at 721-22 (quoting Coss, 532 U.S. at 403).
“‘If that conviction is later used to enhance a
criminal sentence, the defendant generally may not challenge
the enhanced sentence through a petition under § 2254 on
the ground that the prior conviction was unconstitutionally
obtained.'” Id. at 722 (quoting
Coss, 532 U.S. at 403-04).
Supreme Court has made it unmistakably clear that a §
2254 petitioner must, at the time his or her petition is
filed, be “in custody” pursuant to the contested
state conviction or sentence. See Charlton v.
Morris, 53 F.3d 929, 929 (8th Cir.) (per curiam
) (“District Court was without jurisdiction to address
the merits of . . . section 2254 petition because [the
petitioner] . . . was no longer ‘in custody' for
his state conviction”), cert. denied, 516 U.S.
as the authorities in this Entry show, the Supreme Court has
held that if a prior conviction used to enhance a federal
sentence is no longer open to direct or collateral attack in
its own right because the defendant failed to pursue those
remedies while they were available (or because the defendant
did so unsuccessfully), then that defendant may not
collaterally attack his prior conviction through a motion
under § 2255 or a § 2254 petition for writ of
habeas corpus and the prior conviction may be regarded as
conclusively valid. Coss, 532 U.S. at 403. Whatley
was not in custody pursuant to the 2002 conviction at the
time this action was filed. The fact that Whatley was later
in custody pursuant to the 2008 conviction, and even the fact
that the sentence for the 2008 conviction was enhanced
because of the 2002 conviction, do not satisfy the “in
custody” requirement with respect to the 2002
conviction challenged in this case.
Whatley was not in custody pursuant to the 2002 conviction at
the time this action was filed, his petition for writ of
habeas corpus muse be DENIED. Judgment consistent with this
Entry shall now issue in a separate order. A dismissal for
lack of jurisdiction must be without prejudice, Mains v.
Citibank, N.A., 2017 WL 1160901, at *6 (7th Cir. Mar.
29, 2017), so that is the nature of the dismissal of the
addition, 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 Whatley has failed to show that reasonable jurists
would find it “debatable whether [this court] was
correct in its procedural ruling.” Slack v.