petitioner’s Scioto County conviction may have been used to enhance his Indiana sentence does
not impact the Court’s custody analysis. As the Sixth Circuit recently noted in In re Lee, __ F.3d
__» 2018 WL 443876, at *1 (6th Cir. Jan. 17, 2018), “[t]he Supreme Court has made clear that a
petitioner is not ‘in custody’ under a conviction ‘whose sentence has fully expired at the time his
petition is filed,’ even if that conviction has been used to enhance the length of a current or
future sentence imposed for a subsequent conviction.” Jd. (quoting Maleng, 490 U.S. at 491 and
citing Steverson, 258 F.3d at 522-23).

Accordingly, the undersigned concludes that the Court does not have jurisdiction over the
petition and that respondent’s motion to dismiss (Doc. 11) should be GRANTED.

IT IS SO RECOMMENDED.

Date_2/6/20/8 Koen 2 book

Karen L. Litkovitz
United States Magistrate ‘die



conviction will be used to enhance the sentences imposed for any subsequent crimes of which
[an individual] is convicted.” Maleng, 490 U.S. at 492.

In this case, the Court lacks jurisdiction to consider the habeas corpus petition because
petitioner was not in custody under his Scioto County conviction when he filed his petition. As
noted above, petitioner fully served his sentence on September 25, 2015 and was not subject to
supervised release or probation following the trial court’s June 9, 2016 order. Petitioner
therefore was no longer “in custody” based on the challenged conviction and the Court lacks
jurisdiction over the petition. See Maleng, 490 U.S. at 491 (“We have never held . . . that a
habeas petitioner may be ‘in custody’ under a conviction when the sentence imposed for that
conviction has fully expired at the time his petition is filed.”) (emphasis in original); Jn re
Stansell, 828 F.3d 412, 416 (6th Cir. 2016) (noting that “an individual is ‘in custody’ for habeas
purposes when he is in actual, physical custody in prison or jail or when he is subject to
significant post-release restraints on his liberty that are not shared by the public generally,”
which includes individuals subject to post-release control) (emphasis in original) (quotations and
citations omitted). See also Bennington v. Dewine, No. 1:14-cv-688, 2015 WL 1914318, at *5
(S.D. Ohio Apr. 27, 2015) (Report and Recommendation), adopted, 2015 WL 2452623 (S.D.
Ohio May 21, 2015) (Dlott, J) (finding that petitioner’s prior filed civil rights complaint should
not be construed as a habeas corpus petition because the Court would not have jurisdiction over
the petition because petitioner is no longer in custody).

As indicated above, petitioner is currently serving a sentence in Indiana. See supra note
1, He appears to argue that he is still “in custody” under his Ohio conviction and sentence
because “the convictions are being used in another state to enhance my sentence with a (6) year

habitual offender.” (Doc. 17 at PageID 824; Doc. 20 at PageID 958). However, the fact that


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

BRANDON A. MOCKBEE, Case No. 1:17-cv-147
Petitioner,
Black, J.
vs. Litkovitz, M.J.

WARDEN, MIAMI
CORRECTIONAL INSTITUTION,
Respondent.

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
BRANDON A. MOCKBEE, Case No. 1:17-cv-147
Petitioner,
Black, J.
vs. Litkovitz, M.J.
WARDEN, MIAMI REPORT AND
CORRECTIONAL INSTITUTION, RECOMMENDATION
Respondent.

Petitioner, an inmate at the Miami Correctional Institution,' has filed a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. (Doc. 3). This matter is currently before the
Court on respondent’s motion to dismiss (Doc. 11), to which petitioner has responded (Doc. 17,
20). For the reasons stated below, it is recommended that the motion be granted.

In the petition, petitioner challenges his June 2012 conviction and sentence in the Scioto
County, Ohio Court of Common Pleas. (Doc. 3). On June 13, 2012, following a jury trial,
petitioner was found guilty of three counts of aggravated possession of drugs, two counts of
receiving stolen property, and one count each of possession of drugs, theft of drugs, grand theft,
vandalism, possession of criminal tools, breaking and entering, and tampering with evidence.
(Doc. 10, Ex. 6). Petitioner received a total aggregate sentence of twenty years of incarceration
in the Ohio Department of Corrections. (Doc. 10, Ex. 8).

Petitioner filed a direct appeal with the assistance of counsel. (See Doc. 10, Ex. 10). On
December 11, 2013, the Ohio Court of Appeals affirmed in part and reversed in part the

judgment of the trial court. Specifically, the appeals court remanded the case for resentencing

' The Indiana Department of Correction Offender Search webpage indicates that petitioner is currently in custody
based on a January 12, 2017, Dearborn County, Indiana conviction on one count each of burglary,
conspiracy/burglary, and obstruction of justice. (Viewed at https://www.in.gov/apps/indcorrection/ofs/ofs). See
also State v. Mockbee, No. 15C01-1607-F5-000049 (Dearborn Circuit Court) (docket sheet),
https://public.courts.in.gov/mycase/#/vw/Search. This Court may take judicial notice of court records that are
available online to members of the public. See Lynch v. Leis, 382 F.3d 642, 648 n.5 (6th Cir. 2004) (citing Lyons v.
Stovall, 188 F.3d 327, 332 n.3 (6th Cir. 1999)).


after vacating petitioner’s convictions on two counts of aggravated possession of drugs and one
count each of possession of drugs, theft of drugs, and receiving stolen property. (Doc. 10, Ex.
13). On January 23, 2014, the trial court resentenced petitioner to serve a total aggregate
sentence of eight years in the Ohio Department of Corrections. (Doc. 10, Ex. 14).?

On December 29, 2014, petitioner, through different appellate counsel, filed an
application to reopen his appeal pursuant to Ohio App. R. 26(B). (Doc. 10, Ex. 31). Although
the application was initially denied, the Ohio Court of Appeals granted petitioner’s March 30,
2015 motion for reconsideration. (See Doc. 10, Ex. 34, 36). In his reopened appeal, petitioner
argued that the trial court erred by altering and increasing sentences that he had fully served at
the time of resentencing and that his appellate counsel was ineffective for failing to raise this
error on appeal. (See Doc. 10, Ex. 37). On August 18, 2015, the Ohio appeals court reversed the
trial court’s judgment in part and remanded to vacate petitioner’s resentencing on four counts
after finding that petitioner had fully served the sentence associated with those offenses at the
time of his resentencing. (Doc. 10, Ex. 39). The court instructed the trial court to “determine on
remand whether Mockbee has now served the properly imposed three-year prison term and
discharge him if he has done so.” (/d. at PageID 664). On September 25, 2015, the trial court
held a resentencing hearing and determined that petitioner had served his three-year sentence.
(Doc. 10, Ex. 42). Petitioner was discharged from the Ohio Department of Rehabilitation and
Correction by court order on September 25, 2015. (See Doc. 10, Ex. 50).

On December 28, 2015, petitioner, through new counsel, filed a motion to be released
from the provision of his sentence for post release control supervision. (Doc. 10, Ex. 43).

Petitioner’s motion was initially overruled by the trial court. (Doc. 10, Ex. 45). However on

> Petitioner, through counsel, unsuccessfully appealed from the resentencing to the Ohio Court of Appeals and the
Ohio Supreme Court. (See Doc. 10, Ex. 17-18, 21, 22-23, 25). Petitioner also filed a post-conviction motion to
vacate his resentencing, which was denied by the trial court. (Doc. 10, Ex. 26, 29).

2


June 9, 2016, upon reconsideration, the trial court entered a judgment order vacating the post-
release control portion of petitioner’s sentence and ordering that petitioner’s post-release control
supervision cease immediately. (Doc. 10, Ex. 49).

Petitioner filed the instant federal habeas corpus petition roughly eight months later, on
March 8, 2017. (See Doc. 1).

28 U.S.C. § 2254(a) provides that district courts have jurisdiction to entertain petitions
for habeas relief “only from persons who are in custody in violation of the Constitution or law or
treaties of the United States.” Maleng v. Cook, 490 U.S. 488, 490 (1989) (emphasis in original)
(internal citation and quotation marks omitted). “[T]he habeas petitioner must be ‘in custody”
under the conviction or sentence under attack at the time his petition is filed.” /d. (citing Carafas
v. Lavallee, 391 U.S. 234, 238 (1968)). Except in limited situations not applicable to the case-at-
hand, the custody requirement is not met if the petitioner files his habeas petition after the
sentence imposed for the challenged conviction has “fully expired.” See id. at 493-94; see also
Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001); Steverson v. Simmers, 258
F.3d 520, 522-25 (6th Cir. 2001). “[O]nce the sentence imposed for a conviction has
completely expired, the collateral consequences of that conviction,” such as the inability to vote,
engage in certain businesses, hold public office or serve as a juror, “are not themselves sufficient
to render an individual ‘in custody’ for the purposes of a habeas attack on it.” Maleng, 490 U.S.
at 492. See also White v. Kapture, 42 F. App’x 672, 673-74 (6th Cir. 2002). Furthermore, the

“in custody” requirement is not satisfied “merely because of the possibility that the prior

* The Supreme Court has recognized “an exception to the general rule for § 2254 petitions that challenge an
enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was
a failure to appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v. Wainwright, 372 U.S.
335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).” Coss, 532 U.S. at 404. See also Steverson, 258 F.3d at 524.

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