FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

SEPTEMBER 18, 2009

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-16541

Non-Argument Calendar

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D. C. Docket No. 07-00295-CV-4-SPM-WCS

RICKY SWEET,

Petitioner-Appellant,

versus

WALTER A. MCNEIL,

Respondent-Appellee.

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Appeal from the United States District Court

for the Northern District of Florida

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(September 18, 2009)

Before DUBINA, Chief Judge, CARNES and WILSON, Circuit Judges.

PER CURIAM:

Appellant Ricky Sweet, a Florida state prisoner, appeals pro se the district
court’s denial of his 28 U.S.C. § 2254 petition. We granted a certificate of

appealability on one issue: whether the district court erred in finding that it lacked

subject matter jurisdiction over Sweet’s claim of ineffective assistance of counsel,

based on counsel’s failure to object to a violation of the Double Jeopardy Clause,

because Sweet was not “in custody” on the lesser, simple battery conviction at the

time he filed his § 2254 petition.

On July 15, 2003, Sweet was convicted in a jury trial of one count of

burglary with a person battered or assaulted (Count 1), and one count of battery

(Count 2). The state trial court sentenced Sweet to life for Count 1, and to a

sentence of 11 months and 29 days for Count 2. The state trial court instructed that

the sentences run concurrently. Sweet filed a direct appeal that he later dismissed.

He then filed a state post-conviction motion, arguing for the first time that being

convicted of both simple battery and burglary with assault and/or battery

constituted double jeopardy, and his counsel’s failure to object to this prejudiced

him. After an evidentiary hearing, the state court denied relief. On appeal, the

Florida Court of Appeals affirmed. Sweet then filed the present federal habeas

petition.

Procedurally, we review de novo the dismissal of an action for lack of

subject matter jurisdiction. Bradley v. Pryor, 305 F.3d 1287, 1289 (11th Cir. 2002).

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Failure to object to the magistrate’s report will usually preclude a party from

seeking review of the report’s factual findings. See Resolution Trust Corp. v.

Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993) (addressing a civil

contract case); Hardin v. Wainwright, 678 F.2d 589, 591 (11th Cir. 1982) (“failure

to object to a magistrate’s report bar(s) the party from attacking on appeal the

factual findings. . .except upon grounds of plain error or manifest injustice.”

(internal quotation marks omitted)). While Sweet did not object to any findings

with respect to the double jeopardy-based ineffective assistance claim, this would

preclude challenging only the factual findings, not the legal conclusions. The

magistrate judge found – and the district court adopted – that the sentence for

Count 2 had been completed. Sweet therefore waived the right to challenge that

finding.

In order for a federal court to have subject matter jurisdiction over a habeas

proceeding pursuant to statute, the petitioner must also be “in custody pursuant to

the judgment of a State court.” Unger v. Moore, 258 F.3d 1260, 1263 (11th Cir.

2001) (quoting 28 U.S.C. § 2254). In Maleng v. Cook, 490 U.S. 488, 491–92, 109

S. Ct. 1923, 1925–26, 104 L. Ed. 2d 540 (1989), the Supreme Court held that once

a sentence has fully expired, the petitioner is not “in custody” for purposes of

attacking that conviction in a habeas petition.

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In Garlotte v. Fordice, 515 U.S. 39, 45-46, 115 S. Ct. 1948, 1952, 132 L.

Ed. 2d 36 (1995), the Supreme Court held that consecutive sentences are viewed in

the aggregate. When a prisoner serving multiple consecutive sentences has

completed one, but not all, habeas jurisdiction exists to challenge the conviction

for the expired sentence, because invalidation of that conviction would advance the

prisoner’s release date. Id. at 47, 115 S. Ct. at 1952. However, the Court did not

address concurrent sentences.

Because the record demonstrates that the habeas petition was filed in June

2007, long after the end of the shorter sentence, in February 2004, Sweet was no

longer “in custody” for the battery charge. Garlotte’s holding is applicable only to

consecutive sentences, not to concurrent ones. The fact that an expired consecutive

sentence, if vacated, would advance the defendant’s release date was central to the

holding that a prisoner could challenge the underlying conviction of an expired

sentence in a habeas proceeding. Id. at 47, 115 S. Ct. at 1952. By contrast, a

successful habeas action resulting in a vacated concurrent sentence would have no

effect on Sweet’s release date from his other conviction and sentence.

Accordingly, we affirm the judgment of the district court denying habeas relief.

AFFIRMED.

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