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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MICHAEL TOLIVER JORDAN, 530152 )

Petitioner, )

)

v. ) No. 3:04-CV-857-L

)

DOUGLAS DRETKE, Director, Texas )

Department of Criminal Justice, ) 

Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference from the district court. The Findings, Conclusions

and Recommendation of the Magistrate Judge are as follows:

I. Parties

Petitioner is an inmate in the Texas Department of Criminal Justice, Correctional

Institutions Division (TDCJ-CID). He brings this petition for writ of habeas pursuant to 28

U.S.C. § 2254. Respondent is Douglas Dretke, Director of TDCJ-CID.

II. Background

On January 24, 1988, Petitioner pled guilty to theft of property and was sentenced to four

years confinement. State of Texas v. Jordan, No. F-88-89376-NR (265th Jud. Dist. Ct., Dallas

County, Tex., Jan. 24, 1988). Petitioner did not appeal his conviction. 

On or about May, 2002, Petitioner filed a state petition for writ of habeas corpus. On

June 19, 2002, the Texas Court of Criminal Appeals denied the petition.

On April 30, 2004, Petitioner filed this petition. Petitioner seeks to challenge his 1988

 

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conviction because he states it was used to enhance his sentence in a 1989 Denton County case. 

See State of Texas v. Jordan, No. F-89-943-E, (367th Jud. Dist. Ct., Denton County, Texas, May

31, 1990). He argues his 1988 conviction is void because the indictment was defective. The

1988 conviction was also enhanced and he argues the enhancement was void. 

III. Discussion

The Court must first examine whether it has jurisdiction in this case. “Federal courts are

courts of limited jurisdiction. They possess only that power authorized by Constitution and

statute, which is not to be expanded by judicial decree.” Kokkonen v. Guardian Life Ins. Co. of

Am., 511 U.S. 375, 377 (1994) (citations omitted). They “must presume that a suit lies outside

this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party

seeking the federal forum.” Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).

A federal court may consider a writ of habeas corpus only “on behalf of a person in

custody . . . . in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. 

§ 2254(a). A petitioner satisfies the “in custody” requirement when the challenged conviction

has not fully expired at the time he files a petition under § 2254. See Carafas v. Lavallee, 391

U.S. 234, 238 (1968). A petitioner is not “in custody” for a particular conviction when he or she

“suffers no present restraint” from the challenged conviction. Maleng v. Cook, 490 U.S. 488,

492 (1989). “[O]nce 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 purposes of a habeas attack upon it.” Id.

In this case, Petitioner is not in custody on his 1988 conviction. His four-year sentence

for that conviction has fully expired. As a result, he cannot bring a federal habeas action based

 

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solely on his 1988 conviction.

Petitioner claims that his 1988 conviction was used to enhance a 1989 Denton County

conviction. Petitioner filed a federal habeas corpus petition in the Eastern District of Texas

challenging his 1989 Denton County conviction. The Court dismissed the habeas petition as

barred by limitations. Jordan v. Dretke, 4:04-CV-114-RAS-DDB (E.D. Tex. dismissed June 23,

2004). In Petitioner’s habeas petition challenging his 1989 Denton County conviction, he could

have challenged the use of his 1988 conviction as an enhancement. See Maleng at 493-94. 

Petitioner, however, cannot file a habeas petition solely challenging his 1988 conviction because

he is no longer in custody on that conviction. 

Further, the Court declines to construe the petition as a challenge to the 1989 Denton

County conviction. Since Petitioner has already filed a federal habeas petition challenging this

conviction, Petitioner would first need to seek leave from the Fifth Circuit Court of Appeals to

file a second or successive § 2254 petition. 28 U.S.C. § 2244(b)(3)(A). The Court therefore

finds the petition should be dismissed for lack of jurisdiction. 

RECOMMENDATION:

The Court recommends that the petition for a writ of habeas corpus be dismissed with

prejudice for lack of jurisdiction.

Signed this 1ST day of March, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

The United States District Clerk shall serve a copy of these findings and

recommendations on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to

object to these findings and recommendations must file and serve written objections within ten

(10) days after being served with a copy. A party filing objections must specifically identify

those findings and recommendations to which objections are being made. The District Court

need not consider frivolous, conclusory or general objections. The failure to file such written

objections to these proposed findings and recommendations shall bar that party from a de novo

determination by the district court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally,

the failure to file written objections to proposed findings and recommendations within ten (10)

days after being served with a copy shall bar the aggrieved party from appealing the factual

findings and legal conclusions of the Magistrate Judge that are accepted by the District Court,

except upon grounds of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415,

1417 (5th Cir. 1996)(en banc).

 

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