United States Court of Appeals,

Eleventh Circuit.

No. 95-4951

Non-Argument Calendar.

Phillip VAN ZANT, Petitioner-Appellant,

v.

FLORIDA PAROLE COMMISSION, Respondent-Appellee.

Jan. 24, 1997.

Appeal from the United States District Court for the Southern

District of Florida. (No. 94-14237-CV-JCP), James C. Paine, Judge.

Before TJOFLAT, COX and BLACK, Circuit Judges.

PER CURIAM:

Phillip Van Zant appeals the district court's denial of his

pro se habeas petition challenging a parole revocation proceeding.

We reverse and remand with instructions to dismiss the petition for

lack of subject matter jurisdiction because Van Zant was not "in

custody" under 28 U.S.C. § 2241 to challenge the parole revocation

at the time of the filing of his petition.

I. BACKGROUND

In 1979, Van Zant entered a plea of nolo contendere to second

degree murder and was sentenced to life imprisonment. On August

16, 1983, the Florida Parole Commission (the Commission) released

Van Zant on parole. On December 18, 1985, his parole was revoked.

On June 3, 1986, Van Zant was released on parole for a second time.

His second parole was revoked on September 30, 1987. As a result

of this second violation, the Commission enhanced Van Zant's

presumptive parole release date by five years for having two parole

revocations and set the date at October 29, 2006. From 1989 to
 1

It appears that Van Zant did not pursue a timely appeal of

his federal habeas petition. On October 14, 1994, the district

court entered an "Order Denying Motion for Belated Appeal." 

1991, Van Zant unsuccessfully challenged the second parole

revocation in state courts. After exhausting his state remedies,

Van Zant filed a federal habeas corpus petition. On July 29, 1992,

the district court dismissed the petition as moot because Van Zant

had been released on parole for the third time on October 29,

1991.1 Van Zant's third parole was revoked on August 19, 1992. On

January 12, 1993, the Commission established Van Zant's next parole

date at July 23, 2005, having enhanced it by ten years for three

parole revocations. Van Zant is currently incarcerated.

On September 22, 1994, Van Zant filed the instant habeas

petition reasserting his previous challenges to the second

revocation. He alleged that at the preliminary hearing he was

denied counsel, denied the right to confront witnesses, prejudiced

by the admission of uncharged criminal conduct, and denied the

opportunity to present witnesses. He also alleged that his parole

revocation violated Florida statutes and that the Commission had

abused its discretion. The Commission responded that Van Zant was

no longer "in custody" under 28 U.S.C. § 2241 to challenge the

second parole revocation because he had been released from the

incarceration resulting from the second parole revocation.

The magistrate judge found that Van Zant was "in custody"

because the second revocation had been used to enhance his current

parole date. The magistrate judge then recommended denying relief,

finding Van Zant's claims meritless. The district court adopted

the magistrate's report, and denied Van Zant's petition. On
appeal, Van Zant repeats the merits of his claims.

II. DISCUSSION

 Federal 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). When the "sentence

imposed for a conviction has completely expired, the collateral

consequences of that conviction are not themselves sufficient to

render an individual "in custody' for the purposes of a habeas

attack upon it." Id. at 492, 109 S.Ct. at 1926. However, we have

held that the Supreme Court in Maleng left open the possibility

that petitioners who are currently incarcerated may challenge the

enhancement of their current sentences by prior convictions for

which the sentence has completely expired. White v. Butterworth,

70 F.3d 573, 574 (11th Cir.1995), corrected, 78 F.3d 500 (11th

Cir.1996); Harper v. Evans, 941 F.2d 1538, 1539 (11th Cir.1991);

Battle v. Thomas, 923 F.2d 165, 166 (11th Cir.1991). In order to

meet the "in custody" requirement, the petitioner is deemed to be

challenging the current sentence that has been enhanced by an

expired conviction, rather that directly challenging the expired

conviction. Therefore, a petitioner may challenge an expired

conviction only if, at the time of the filing of the petition, (1)

the petitioner is incarcerated under a current sentence that (2)
 2

This case does not concern the issue of mootness. The

issue of jurisdiction under the habeas statute precedes and is

separate from the issue of mootness. Tyars v. Finner, 709 F.2d

1274, 1278-80 (9th Cir.1983). Mootness is an issue of

constitutional dimension. Id. If the district court has

jurisdiction at the time of the filing of the habeas petition,

but at the time of decision, the challenged sentence has expired,

the court must decide whether the petition is moot. A

determination that the petitioner may suffer adverse collateral

consequences from an expired sentence will not, however, create

jurisdiction when no jurisdiction was present at the time the

petition was filed. 

 3

We do not decide whether imposition of a parole date is

equivalent to incarceration under a current sentence. We note

that Van Zant was imprisoned for life and his habeas petition

does not challenge that conviction. He challenges the revocation

of his second parole in 1987 which resulted in a reinstatement of

his life sentence. The sentence of reinstatement expired when he

was subsequently paroled for the third time in 1991. The proper

time to file a federal habeas petition in this case was after the

second parole revocation and before being subsequently paroled. 

Apparently, Van Zant filed such a petition, but he did not seek

review of the district court's denial of the petition. See supra

note 1. 

has been enhanced by the expired conviction.2

The issue is whether Van Zant is incarcerated under a current

sentence that has been enhanced by the parole revocation he seeks

to expunge. Van Zant asserts that the imposition of a parole date

is equivalent to incarceration under a current sentence and his

parole date has been enhanced by an extra five years on account of

the parole revocation.3 He seeks relief from this Court to expunge

the second parole revocation from his record so that it will not be

used to enhance his current parole date.

 Initially, we note that the grant of parole is entirely

discretionary, and the parole release date is just a presumption,

not an effective release date. See Florida Parole and Probation

Commission v. Paige, 462 So.2d 817, 819 (Fla.1985) ("Placement of

the inmate on parole on the date of his presumptive parole release
 4

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (en banc), this Court adopted as binding precedent all

decisions of the former Fifth Circuit handed down prior to close

of business on September 30, 1981. 

date ... is not automatic."). In this case, Van Zant was released

in 1991, well before his parole date of October 29, 2006. The

Commission has "the ultimate discretion in deciding whether to

parole." Id. The Supreme Court has directed that federal "courts

should be particularly deferential to the informed discretion of

corrections officials." Turner v. Safley, 482 U.S. 78, 90, 107

S.Ct. 2254, 2262, 96 L.Ed.2d 64 (1987).

 We hold that the relationship between the challenged parole

revocation and Van Zant's current parole date is too "speculative

and remote" for us to find that the parole revocation enhanced Van

Zant's parole date. Sinclair v. Blackburn, 599 F.2d 673, 675-76

(5th Cir.1979), cert. denied, 444 U.S. 1023, 100 S.Ct. 684, 62

L.Ed.2d 656 (1980).4

 In Sinclair, we held that the petitioner was

not in custody to challenge a prior expired conviction when that

conviction had merely been one of many factors used to deny parole.

We held that the relationship between the prior expired conviction

and the current custodial sentence was too "speculative and remote"

to establish custody. Id. at 676. The effect of the parole

revocation in this case is even more speculative than in Sinclair.

With two parole revocations on Van Zant's record, the Commission

set the parole date at October 29, 2006. With three parole

revocations on his record, however, the Commission accelerated his

parole date to July 23, 2005. Even assuming that imposition of a

parole date is equivalent to incarceration under a current
sentence, Van Zant cannot challenge the parole revocation because

its enhancement effect on his current parole date is too

"speculative and remote." The district court, therefore, erred in

addressing Van Zant's claims on the merits because it had no

jurisdiction to entertain Van Zant's habeas petition.

III. CONCLUSION

We reverse and remand for the district court to dismiss the

petition for lack of subject matter jurisdiction.

REVERSED and REMANDED.