FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 20, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-11692

Non-Argument Calendar

________________________

D. C. Docket No. 05-14297-CV-DLG

WARREN LAVELL JACKSON, 

Petitioner-Appellant, 

versus 

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS, 

James McDonough, 

Respondent-Appellee. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(November 20, 2006)

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
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Appellant Warren Lavell Jackson (“Jackson”), a federal prisoner proceeding

pro se, appeals the district court’s denial of his pro se 28 U.S.C. § 2254 petition for

a writ of habeas corpus concerning his prior 1992 state conviction for cocaine

possession which the district court construed as a motion to vacate, correct, or set

aside a sentence pursuant to 28 U.S.C. § 2255. Jackson concedes that his prior

state conviction and sentence had expired, but argues that he could still attack this

conviction because it was used to enhance the federal sentence he is currently

serving and because the prior expired conviction was allegedly obtained in

violation of his Sixth Amendment right to counsel. He bases his Sixth Amendment

argument on the state trial court and his counsel’s alleged failure to inform him of

his right to appointed counsel on appeal. 

In a proceeding on a collateral attack, we review the district court’s factual

findings for clear error and legal issues de novo. Lynn v. United States, 365 F.3d

1225, 1232 (11th Cir. 2004) (§ 2255 context); LeCroy v. Sec’y, Florida Dept. of

Corr., 421 F.3d 1237, 1259 (11th Cir. 2005), cert. denied, 126 S. Ct. 1458 (2006)

(§ 2254 context). We have held that “[p]ro se pleadings are held to a less stringent

standard than pleadings drafted by attorneys and will, therefore, be liberally

construed.” Trawinski v. United Techs., 313 F.3d 1295, 1297 (11th Cir. 2002)

(citation omitted).
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District courts have jurisdiction to entertain § 2254 habeas petitions only

from petitioners who are “in custody in violation of the Constitution or laws or

treaties of the United States.” 28 U.S.C. § 2241(c)(3); see also Means v. Alabama,

209 F.3d 1241, 1242 (11th Cir. 2000). When a prisoner’s sentence has fully

expired, he is not “in custody” as required by § 2241, and the mere possibility that

the prior conviction will be used to enhance a sentence imposed for any subsequent

crimes is not enough to render him “in custody.” Maleng v. Cook, 490 U.S. 488,

492, 109 S. Ct. 1923, 1926, 104 L. Ed. 2d 540 (1989). The Supreme Court has

acknowledged, however, that when a § 2254 petition could be read as asserting a

challenge to a present sentence that actually was enhanced by the allegedly invalid

prior conviction, the prisoner is “in custody” for purposes of federal habeas

jurisdiction. Id. at 493-94, 109 S. Ct. at 1926-27; see also Lackawanna County

Dist. Att’y v. Coss, 532 U.S. 394, 402, 121 S. Ct. 1567, 1573, 149 L. Ed. 2d 608

(2001) (petitioner found to be “in custody” for § 2254 purposes because he

challenged an allegedly invalid expired conviction and sentence as enhancing his

current sentence). 

Even though a prisoner may be “in custody” under these circumstances, the

fact that a prior conviction was used to enhance a present sentence does not entitle

the prisoner to challenge the prior conviction. In Daniels v. United States,
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532 U.S. 374, 382, 121 S. Ct. 1578, 1583, 149 L. Ed. 2d 590 (2001), the Supreme

Court held that if “a prior conviction used to enhance a federal sentence is no

longer open to direct or collateral attack in its own right because the defendant

failed to pursue those remedies while they were available (or because the defendant

did so unsuccessfully),” a movant’s § 2255 motion challenging the prior conviction

will fail because the presumption of validity that attached to the prior conviction at

the time of sentencing is conclusive. The Court held that a defendant generally is

not entitled to collaterally attack his prior conviction through a motion under §

2255 unless he alleges that the conviction was obtained in violation of the right to

counsel announced in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed.

2d 799 (1963). Daniels, 532 U.S. at 382, 121 S. Ct. at 1583. 

In Lackawanna, the Court extended the holding in Daniels to petitioners

challenging expired state sentences under § 2254. Lackawanna, 532 U.S. at

396-97, 121 S. Ct. at 1570. Lackawanna also provided an exception for attacking

a prior expired state sentence when such prior conviction had been obtained

without the benefit of counsel in violation of Gideon. Id. at 404, 121 S. Ct. at

1574. However, as with any § 2254 petition, a petitioner seeking relief under this

exception must satisfy the procedural prerequisites for relief. Id. 

In Gideon, the Supreme Court held that a state court’s refusal to appoint trial
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counsel, upon request, for an indigent defendant accused of a non-capital felony

violated due process. Gideon, 372 U.S. at 343-45, 83 S. Ct. at 796-97. The right

to counsel at trial flows from the explicit grant of this right in the Sixth

Amendment made applicable to the states through the Due Process Clause of the

Fourteenth Amendment. Id. at 339, 83 S. Ct. at 794. There is no constitutional

right to appeal. Ross v. Moffitt, 417 U.S. 600, 611, 94 S. Ct. 2437, 2444, 41 L. Ed.

2d 341 (1974). However, if an appeal right is granted by statute, an indigent

defendant also has a right to appointed counsel in his first appeal as of right. 

Douglas v. California, 372 U.S. 353, 357-58, 83 S. Ct. 814, 817, 9 L. Ed. 2d 811

(1963) (holding that denial of indigent appellants’ appeal without the benefit of

counsel violated the Equal Protection Clause of the Fourteenth Amendment). 

We have noted that the Daniels/Lackawanna exception is not implicated

where a defendant was represented by counsel during the proceedings related to his

prior conviction underlying the expired sentence. See Hubbard v. Haley, 317 F.3d

1245, 1256 n.20 (11th Cir. 2003) (capital context where petitioner attempted to

expand his § 2254 petition to attack an expired conviction serving as the basis for

aggravated factor in sentencing order). 

As an initial matter, we conclude from the record that Jackson met the “in

custody” requirement. Here, Jackson brought the present § 2254 petition attacking
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a 1992 state conviction for cocaine possession and conceded that the sentence on

this conviction had expired. However, he explicitly alleged that this conviction

was used to enhance the federal life sentence he was currently serving. Thus,

under Maleng, Jackson met § 2254’s “in custody” requirement. See Maleng, 490

U.S. at 493-94, 109 S. Ct. at 1926-27. 

Nevertheless, Jackson was not entitled to attack his expired conviction under

the Gideon exception articulated in Daniels and Lackawanna. From the record, it

is clear that Jackson was represented by counsel during the trial court proceedings

related to his prior expired state court conviction and sentence. See Hubbard,

317 F.3d at 1256 n.20. The state court also informed Jackson that he could appeal

his conviction and sentence and nothing in the record indicates that he requested

counsel on appeal and was refused. Furthermore, though there is a right to

appointed counsel on a defendant’s first appeal as of right per Douglas, this is not

the exception articulated in Daniels and Lackawanna. Rather, Daniels and

Lackawanna speak only to Gideon-type violations. See Daniels, 532 U.S. at 382,

121 S. Ct. at 1583; Lackwanna, 532 U.S. at 404, 121 S. Ct. at 1574.

In any event, as the magistrate judge correctly noted and to which Jackson

did not object, Jackson was not entitled to attack his prior expired state conviction

because his petition was untimely. 28 U.S.C. § 2244(d) (providing for a 1-year
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statute of limitations for petitions for writ of habeas corpus); Nettles v. Wainwright,

677 F.2d 404, 409-10 (5th Cir. Unit B 1982) (failure to raise objections to the

magistrate’s report and recommendation bars a party from attacking on appeal

factual findings adopted by the district court except upon grounds of plain error or

manifest injustice). Jackson filed his petition more than a decade after his

conviction. Thus, Jackson did not satisfy the procedural prerequisites for relief,

which is a necessary component of a collateral attack even when alleging a

Gideon-type violation. See Lackawanna, 532 U.S. at 404, 121 S. Ct. at 1574. 

Accordingly, we affirm the district court’s judgment denying Jackson’s § 2255

motion.

AFFIRMED.