Wood v. Lawson

          SECOND SUPPLEMENTAL REPORT AND RECOMMENDATION

          GARY M. PURCETL, UNITED STATES MAGISTRATE JUDGE.

         Petitioner, 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.

         I. Background

         On 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.^[1] On December 18, 2013, Petitioner was sentenced to one year imprisonment for each of these convictions. Id.; Doc. No. 18-1 at 1.

         Also on 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.^[2]

         Petitioner 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.

         II. Analysis

         The 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.”).

         Petitioner 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.

         Additionally, 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.^[3]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.

         As 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.

         RECOMMENDATION

         Based 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 26^th, 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 waived.”).

         This Second Supplemental Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in the captioned matter, and any pending ...