Case: 17-13674 Date Filed: 06/20/2018 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13674
Non-Argument Calendar
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D.C. Docket No. 0:17-cv-61165-WPD
JOHN M. KROTT,
Petitioner-Appellant,
versus
WALTON CI WARDEN,
ATTORNEY GENERAL, STATE OF FLORIDA,
Respondents-Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(June 20, 2018)
Before ED CARNES, Chief Judge, WILSON, and JORDAN, Circuit Judges.
PER CURIAM:
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John Krott, a Florida prisoner proceeding pro se, appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition for lack of jurisdiction.
Krott pleaded guilty on June 30, 2006, to driving with a suspended license
and was sentenced that day to time served. He is currently serving a 30-year
sentence on a robbery conviction, which was imposed on September 7, 2007. In
his § 2254 petition, Krott challenges his 2006 conviction, contending that law
enforcement fabricated a warrant to arrest him for driving with a suspended
license, and that without the warrant he could not have been arrested for the
robbery offense. The court dismissed his petition for lack of jurisdiction on the
ground that Krott is not in custody under the 2006 conviction because that sentence
expired. This is his appeal.
The district court did not err in dismissing Krott’s petition for lack of
jurisdiction. Federal courts have jurisdiction to consider a habeas petition from a
petitioner “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.” 28 U.S.C. § 2254(a). “A federal habeas petitioner must be ‘in
custody’ under the conviction or sentence under attack at the time his petition is
filed.” Diaz v. State of Fla. Fourth Judicial Circuit,
683 F.3d 1261, 1264 (11th Cir.
2012) (quoting Maleng v. Cook,
490 U.S. 488, 490–91,
109 S. Ct. 1923, 1925
(1989)). Although we broadly construe the “in custody” requirement, a petitioner
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cannot satisfy that requirement if he “suffers no present restraint from the
conviction being challenged.”
Id. (quotation marks omitted).
Krott concedes that he challenges only his conviction for driving with a
suspended license. That sentence expired on June 30, 2006, which means he is no
longer “in custody” under that sentence. See
Maleng, 490 U.S. at 492, 109 S. Ct.
at 1926 (concluding that a petitioner whose sentence “has completely expired” is
no longer “in custody” under that sentence). He argues that he can challenge that
conviction because it led to his robbery conviction, but the collateral consequences
of a conviction are not enough to satisfy the “in custody” requirement. See
id.
(“[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 the purposes of a habeas attack upon it.”). And he
cannot satisfy the two exceptions to the “in custody” requirement because his
robbery sentence was not enhanced by his 2006 conviction and the two sentences
are not consecutive. See Van Zant v. Fla. Parole Comm’n,
104 F.3d 325, 327
(11th Cir. 1997) (“[A] petitioner may challenge an expired conviction only if, at
the time of the filing of the petition, (1) the petitioner is incarcerated under a
current sentence that (2) has been enhanced by the expired conviction.”);
Diaz, 683
F.3d at 1264 (“[A] petitioner in state custody may challenge the first of multiple,
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consecutive sentences imposed[,] even where the first sentence has already been
served . . . .”) (citing Garlotte v. Fordice,
515 U.S. 39,
115 S. Ct. 1948 (1995)).
AFFIRMED.
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