United States District Court, W.D. Oklahoma
SECOND SUPPLEMENTAL REPORT AND
M. PURCETL, UNITED STATES MAGISTRATE JUDGE.
a state prisoner appearing pro se, brings this
action pursuant to 28 U.S.C. § 2254 seeking a writ of
habeas corpus. Petitioner is challenging his convictions
entered in the District Court of Oklahoma, Oklahoma County,
No. CF-2013-6286. Respondent has filed a Motion to Dismiss
arguing the Petition should be dismissed because Petitioner
has already discharged the sentences received for the
challenged convictions. The matter has been referred to the
undersigned Magistrate Judge for initial proceedings
consistent with 28 U.S.C. §636(b)(1)(B). For the
following reasons, it is recommended the Motion to Dismiss be
granted and the Petition be dismissed.
December 5, 2013, Petitioner entered a plea of no contest to
two charges of Domestic Abuse (Assault and Battery). Doc. No.
1 (“Petition”) at 1; see also Oklahoma
State Courts Network, District Court of Oklahoma, Oklahoma
County, No. CF-2013-6286. On December 18, 2013, Petitioner was
sentenced to one year imprisonment for each of these
convictions. Id.; Doc. No. 18-1 at 1.
December 18, 2013, the state district court entered multiple
sentences of imprisonment, varying in length, against
Petitioner in three additional and separate cases in which he
was charged with multiple drug related charges. Doc. No. 18-2
at 6; Doc. No. 18-3 at 8; Doc. No. 18-4 at 11. In all four
cases, including the convictions challenged herein, the state
district court ordered all of Petitioner's sentences to
run concurrently. Doc. No. 18-1 at 1; Doc. No. 18-2 at 6;
Doc. No. 18-3 at 8; Doc. No. 18-4 at 11. Petitioner was
received into the custody of the Department of Corrections
(“DOC”) to begin serving his sentences from the
four cases on February 26, 2014. Doc. No. 18-5.
filed the instant action challenging his convictions for
Domestic Abuse in No. CF-2013-6286 on August 23, 2018.
See generally Petition. Respondent has filed a
Motion to Dismiss arguing this Court does not have
jurisdiction over this matter because Petitioner has already
served the sentences corresponding with the challenged
convictions and therefore, he is no longer “in custody,
” as required for habeas relief. See generally
Doc. Nos. 17, 18.
federal habeas statute requires that an applicant seeking
relief from a state court conviction be “in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a). The applicant
must be “in custody” under the challenged
conviction or sentence at the time the habeas application is
filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989).
The “in custody” requirement is jurisdictional.
McCormick v. Kline, 572 F.3d 841, 848 (10th Cir.
2009). Consequently, a state prisoner cannot challenge the
constitutionality of his conviction in a federal habeas
proceeding if he has completed his sentence for the
conviction under attack at the time the § 2254 petition
is filed. Maleng, 490 U.S. at 491; see also
Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394,
401 (2001) (“[Petitioner] is no longer serving the
sentences imposed pursuant to his 1986 convictions, and
therefore cannot bring a federal habeas petition directed
solely at those convictions.”).
identifies his convictions in No. CF-2013-6286 in the
District Court of Oklahoma County, Oklahoma as the
convictions he is challenging. It is clear from the relevant
dates set out in the Petition, as well as the DOC website,
that Petitioner has served the one-year sentences he received
in December 2013, and that he was not in custody pursuant to
those convictions at the time he filed the instant Petition
in August 2018. Although the DOC website does not list the
convictions and sentences at issue herein, the convictions
and sentences entered in his other three cases are listed.
See Doc. No. 18-5 at 3-4. A one year sentence
Petitioner received in Case Number CF-2013-7063 that ran
concurrently with the sentences in Case Number CF-2013-6286
expired on September 8, 2014. Id. at 4.
on December 8, 2016, Petitioner filed an Application for
Post-Conviction Relief in Case Number CF-2013-6286.
See Oklahoma State Courts Network, District Court of
Oklahoma, Oklahoma County, No. CF-2013-6286.In the state
district court's order denying the same, the court
stated, “Petition[er] has waited until after he has
fully discharged his sentence in this matter to raise the
issue for the first time.” Doc. No. 2-1 at 2.
Respondent notes, Petitioner is currently on probation and/or
serving post-imprisonment supervision for a portion of his
2013 sentences that he has not already discharged. Doc. No.
18-5 at 2-3. While he is considered “in custody”
for purposes of habeas review for those convictions, see
Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir. 2009),
the sentences corresponding to the convictions he is
challenging herein have clearly expired. Thus, this Court
does not have jurisdiction over Petitioner's federal
habeas Petition and the same should be dismissed.
on the foregoing findings, it is recommended Respondent's
Motion to Dismiss (Doc. No. 17) be granted and the Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254
be dismissed. Petitioner is advised of his right to file an
objection to this Second Supplemental Report and
Recommendation with the Clerk of this Court by February
26th, 2019, in accordance with 28 U.S.C.
§ 636 and Fed.R.Civ.P. 72. The failure to timely object
to this Second Supplemental Report and Recommendation would
waive appellate review of the recommended ruling. Moore
v. United States, 950 F.2d 656 (10th Cir. 1991); cf.
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996)
(“Issues raised for the first time in objections to the
magistrate judge's recommendation are deemed
Second Supplemental Report and Recommendation disposes of all
issues referred to the undersigned Magistrate Judge in the
captioned matter, and any pending ...