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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

SEAN REILLY,

Petitioner,

v. CASE NO. 4:10-cv-310-SPM-GRJ

LARRY CAMPBELL,

Respondent.

___________________________/

REPORT AND RECOMMENDATION

Petitioner initiated this case by filing a petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254. The Petition stems from Petitioner’s conviction of one

misdemeanor count of violating a domestic violence injunction. Doc. 1. Petitioner

contends that his trial counsel rendered ineffective assistance, that he was denied his

right to due process and equal protection, and that his conviction was unlawful in other

respects. This matter is now before the Court on Doc. 31, Respondent’s motion to

dismiss the Petition for lack of jurisdiction because Petitioner’s sentence had fully

expired at the time the Petition was filed, and therefore Petitioner was not “in custody”

pursuant to the sentence for purposes of 28 U.S.C. § 2254. For the following reasons,

the undersigned recommends that the motion to dismiss be granted. 

1

Because the Court may resolve the Petition on the basis of the record, the Court 1

has determined that an evidentiary hearing is not warranted. See Rule 8, Rules

Governing Habeas Corpus Petitions Under Section 2254.

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State-Court Proceedings

The procedural history of this case is summarized in the motion to dismiss, and

Respondent has provided the relevant state court records with the motion. Briefly,

Petitioner was charged in 2007 with the misdemeanor offense of violating a domestic

violence injunction. Response Exhibit A. Following his jury-trial conviction in Leon

County, Petitioner was placed on probation with a suspended six month sentence. Id.

Exh. B. Petitioner subsequently violated probation, and on January 12, 2010, he was

sentenced to 180 days in the county jail, with his sentence to run concurrent with

sentences he was serving in two felony cases. Petitioner was given 281 days’ credit for

time served, and accordingly his 180-day sentence was fully served on the date that it

was imposed. See id. Exh. C. Petitioner was released from county jail in the summer

of 2010, but he violated his community control and probation, and is now serving a

sentence in state prison on felony convictions. The instant Petition was filed on July 23,

2010.

Discussion

Relief under 28 U.S.C. § 2254 is available to a person who is “in custody

pursuant to the judgment of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States.” The "in custody"

requirement is a prerequisite to invoking the subject matter jurisdiction of the court.

Unger v. Moore, 258 F.3d 1260, 1263 (11th Cir. 2001).

In Maleng v. Cook, 490 U.S. 488, 491-92 (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. In this case, the record reflects that at the

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time the instant Petition was filed, Petitioner’s sentence of incarceration had fully

expired because on the date that he was sentenced – January 12, 2010 – he was given

281 days’ credit for time served against his 180-day sentence. See Exh. C. While the

expiration of a sentence during the pendency of a habeas petition does not render the

petition moot, see Jamerson v. Sec’y, Dept. Of Corr., 410 F.3d 682, 688 (11 Cir. th

2005), in this case it is clear that Petitioner failed to meet the “in custody” requirement

at the time the Petition was filed on July 23, 2010.

Petitioner contends that this Court should exercise jurisdiction over his petition

because he was in custody pursuant to consecutive sentences imposed in two felony

cases at the time the Petition was filed, and his misdemeanor conviction does not

reflect which felony sentence it was to run concurrent with. See Doc. 35. Petitioner is

mistaken. First, as noted above, his misdemeanor conviction was fully served on the

day that it was imposed. Second, in Garlotte v. Fordice, 515 U.S. 39, 45-46 (1995), the

Supreme Court held that consecutive sentences are viewed in the aggregate for

purposes of the “in custody” requirement. 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. 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 petitioner’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. By contrast, a successful

habeas action resulting in a vacated concurrent sentence – such as the 180-day

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sentence at issue in this case – would have no effect on Petitioner’s release date from

his concurrent felony convictions and sentences. See Sweet v. McNeil , 2009 WL

2974884, *1-*2 (11 Cir. 2009) (unpublished) (affirming dismissal of habeas petition for th

lack of subject matter jurisdiction because petitioner’s 11-month and 29-day sentence

that was concurrent with a life sentence had expired before the petition was filed). 

2

Conclusion

For the foregoing reasons it is respectfully RECOMMENDED that the motion to

dismiss, Doc. 31, be GRANTED, that this case be DISMISSED with prejudice, and that

a certificate of appealability be DENIED.

IN CHAMBERS this 5 day of August 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

NOTICE TO THE PARTIES

A party may file specific, written objections to the proposed findings and

recommendations within 14 days after being served with a copy of this report and

recommendation. A party may respond to another party’s objections within 14 days after being

served with a copy thereof. Failure to file specific objections limits the scope of review of

proposed factual findings and recommendations.

Pursuant to 11 Cir. R. 36.2, unpublished opinions are not considered binding 2 th

precedent but may be cited as persuasive authority. Because it is clear that the Court

lacks subject matter jurisdiction over the Petition, it is unnecessary to address the

Respondent’s alternative argument that Petitioner’s claims are unexhausted.

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