United States Court of Appeals,

Eleventh Circuit.

Nos. 94-2901, 94-2989

Non-Argument Calendar.

Timothy Edward WHITE, Petitioner-Appellant,

v.

Robert A. BUTTERWORTH, The Attorney General for the State of

Florida, Harry K. Singletary, Jr., Secretary of the Florida

Department of Corrections, Respondents-Appellees.

Dec. 7, 1995.

Appeals from the United States District Court for the Middle

District of Florida. (No. 93-1488-CIV-J-10), Wm. Terrell Hodges,

Judge.

Before KRAVITCH, EDMONDSON and BARKETT, Circuit Judges.

PER CURIAM:

Timothy White, a Florida prisoner, appeals the dismissal of

his § 2254 habeas petition and the denial of his motion for

reconsideration of the dismissal. The district court dismissed the

petition after concluding that White did not satisfy § 2254's

jurisdictional "in custody" requirement because he was attacking an

"expired" sentence. Upon review of the record, we determine that

the court erred in finding that White was not "in custody" and

therefore reverse the order dismissing the petition and remand for

further proceedings.

In 1985, White pled guilty to a crime in Florida and received

five years probation. When he violated the terms of his probation

in Alabama in 1987, he was extradited to Florida, where he pled

guilty to violating his probation and received a four-year

sentence, to run concurrently with an unspecified Alabama sentence.
After serving the 1987 Florida sentence, White was convicted of

another crime in Florida in 1992 and received an enhanced sentence

as a habitual felony offender; the enhanced sentence was based in

part on his 1987 conviction for probation violation. He currently

is serving the enhanced sentence.

White filed this pro se § 2254 habeas petition in 1993,

apparently challenging his 1987 conviction on several

constitutional grounds. In response to an order to show cause why

the petition should not be dismissed, White admitted that he was

currently incarcerated pursuant to his 1992 sentence, but claimed

that he still was "in custody" as a result of the 1987 conviction

because his 1992 sentence was enhanced due to his 1987 conviction.

The district court dismissed the petition and thereafter summarily

denied White's motion for reconsideration.

 District courts may entertain petitions for habeas relief

only from persons who are "in custody in violation of the

Constitution or laws or treaties of the United States." 28 U.S.C.

§ 2254(a) (emphasis added); Maleng v. Cook, 490 U.S. 488, 490, 109

S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989). Jurisdiction normally

does not extend to a petitioner who challenges a conviction after

his sentence has fully expired. Id., 488 U.S. at 490-92, 109 S.Ct.

at 1925-26. This Court has held, however, that "a habeas

petitioner may challenge a fully expired prior conviction if he is

currently incarcerated as a result of a current sentence that was

enhanced by his prior conviction." Harper v. Evans, 941 F.2d 1538,

1539 (11th Cir.1991). Stated differently, a habeas petitioner may

challenge a current sentence on the ground that it was enhanced by
 1

White also appears to have made the argument that he was

"in custody" as a result of the 1987 conviction because Alabama

had placed a detainer on him for the conviction that should have

run concurrently with his 1992 sentence. We note that a

petitioner held in one state with a detainer lodged against him

by another state is "in custody" for purposes of attacking the

detainer. See Braden v. 30th Judicial Circuit Court of Kentucky,

410 U.S. 484, 498-499 & n. 15, 93 S.Ct. 1123, 1131-32 & n. 15, 35

L.Ed.2d 443 (1973); Stacey v. Warden, Apalachee Correctional

Institution, 854 F.2d 401, 403 (11th Cir.1988). 

an allegedly invalid, prior conviction.

 The State argues that the district court correctly found that

White was challenging only his expired 1987 conviction. We

disagree. Having read White's papers with the liberality due pro

se petitioners, we find that White is claiming that his current

sentence was enhanced by his allegedly invalid 1987 conviction. In

response to the court's show cause order, for example, White

asserted that he is "currently incarcerated ... pursuant to the

[1992] conviction ... where the State has relied upon the [1987]

sentence ... for an enhancement sentence...." R1-20 at 2-3. The

State's argument is based on "a distinction without a difference.

Whether or not the petition is framed facially in terms of an

attack on the enhanced sentence or the expired sentence, the

reality is that [White] is ... "in custody' as result of a prior

and alleged illegal conviction." Harper, 941 F.2d at 1539. Thus,

the court's conclusion that White failed to meet the "in custody"

requirement of § 2254 was erroneous.1

 The State argues that this Court should nevertheless affirm

the dismissal because White's claims are unexhausted and

procedurally barred. The district court's show cause order,

however, merely required that White explain why he was "in custody"
and did not ask him to respond to the State's procedural default

arguments. Because White has not been given an opportunity to

respond to any issues of exhaustion or procedural bar, we will not

affirm on this ground. See Battle v. Thomas, 923 F.2d 165, 166

(11th Cir.1991).

For the foregoing reasons, we REVERSE the district court's

order dismissing White's petition and REMAND the case for further

proceedings consistent with this opinion. In light of this ruling,

we DISMISS AS MOOT White's appeal of the order denying his motion

for reconsideration of the dismissal.