1. Although the Clerk stamped the petition “filed” on July 24, 2006, Whitlow certified that she placed

1

the petition in the prison mail system for mailing on July 20, 2006. The law is well settled that a pro se inmate’s

petition is deemed filed the date it is delivered to prison officials for mailing. Houston v. Lack, 487 U.S. 266, 271-

272 (1988); Adams v. United States, 173 F.3d 1339, 1340-41 (11 Cir. 1999); Garvey v. Vaughn, 993 F.2d 776, th

780 (11 Cir. 1993). “Absent evidence to the contrary in the form of prison logs or other records, [this court] must th

assume that [the instant petition] was delivered to prison authorities the day" Whitlow certified she undertook such

action. Washington v. United States, 243 F.3d 1299, 1301 (11 Cir. 2001). In light of the foregoing, the court th

considers July 20, 2006 as the date of filing.

IN THE DISTRICT COURT OF THE UNITED STATES

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

SONJA E. WHITLOW, )

)

 Petitioner, )

)

 v . ) CASE NO. 3:06-CV-655-MEF 

) [WO]

)

JUDGE DENSON, et al., )

)

 Respondents. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

This cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus relief

filed by Sonja E. Whitlow [“Whitlow”], an inmate confined in the Lee County Detention

Facility, on July 20, 2006. In this petition, Whitlow challenges a conviction for criminal 1

trespassing imposed upon her on April 12, 2004 by the Circuit Court of Lee County,

Alabama. Whitlow identifies this conviction as CC-04-325-C. 

Pursuant to the orders of this court, the respondents filed an answer in which they

maintain that Whitlow was not “in custody” on the trespassing conviction at the time she

filed the instant habeas petition. The state court record submitted by the respondents

Case 3:06-cv-00655-MEF-CSC Document 10 Filed 09/20/2006 Page 1 of 4
2. The record establishes that Whitlow is now confined pursuant to an order entered in a 2003 Lee

2

County case.

2

demonstrates that the sentence imposed for the challenged conviction expired on May 2,

2006, see Respondents' Exhibit 1Q, prior to the date Whitlow federal habeas action.2

DISCUSSION

The law is well settled that “[f]ederal district courts have jurisdiction to entertain

habeas petitions only from persons who are ‘in custody in violation of the Constitution or

laws or treaties of the United States.’ 28 U.S.C. § 2241(c)(3). A petitioner is not ‘in

custody’ to challenge a conviction when the sentence imposed for that conviction has

completely expired. Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 1925, 104

L.Ed.2d 540 (1989).” Van Zant v. Florida Parole Commission, 104 F.3d 325, 327 (11 Cir.

th

1997); Unger v. Moore, 258 F.3d 1260, 1263 (11 Cir. 2001) (federal courts lack subject th

matter jurisdiction to consider habeas “petitions which challenge a conviction with a

completely expired sentence.”). 

Whitlow filed the instant petition for habeas corpus relief on July 20, 2006. Whitlow

completed service of the sentence imposed for the trespassing conviction challenged in this

habeas petition on May 2, 2006. It is therefore clear that at the time Whitlow filed this §

2254 petition she was not "in custody" pursuant to the 2004 trespassing conviction as is

required for purposes of a habeas attack on this conviction. Thus, the petition for writ of

habeas corpus filed by Sonja E. Whitlow on July 20, 2006 is due to be dismissed for lack of

Case 3:06-cv-00655-MEF-CSC Document 10 Filed 09/20/2006 Page 2 of 4
3

subject matter jurisdiction as the petitioner is not "in custody" on the trespassing conviction

challenged in this petition. Maleng v. Cook, 490 U.S. 488, 490 (1989). 

CONCLUSION

Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the 28

U.S.C. § 2254 petition for habeas corpus relief be denied and this case dismissed with

prejudice as this court lacks jurisdiction to consider the petitioner’s claims for relief. 

It is further 

ORDERED that on or before October 3, 2006, the parties may file objections to the

Recommendation. Any objections filed must specifically identify the findings in the

Magistrate Judge's Recommendation to which the party is objecting. Frivolous, conclusive

or general objections will not be considered by the District Court. The parties are advised

that this Recommendation is not a final order of the court and, therefore, it is not appealable.

Failure to file written objections to the proposed findings and advisements in the

Magistrate Judge's Recommendation shall bar the party from a de novo determination by the

District Court of issues covered in the Recommendation and shall bar the party from

attacking on appeal factual findings in the Recommendation accepted or adopted by the

District Court except upon grounds of plain error or manifest injustice. Nettles v.

Wainwright, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d

33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en

banc), adopting as binding precedent all of the decisions of the former Fifth Circuit handed

Case 3:06-cv-00655-MEF-CSC Document 10 Filed 09/20/2006 Page 3 of 4
4

down prior to the close of business on September 30, 1981.

Done this 20 day of September, 2006. th

 /s/Charles S. Coody 

CHARLES S. COODY

CHIEF UNITED STATES MAGISTRATE JUDGE

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