Charles D. Scanio v. United States ( 1994 )

ALTIMARI, Circuit Judge:

Petitioner-appellant Charles D. Seanio appeals from a judgment of the United States District Court for the Western District of New York (Telesca, C.J.), denying petitioner’s motion for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (1988). The district court denied the motion and dismissed the petition on the ground that the petition was untimely when filed because Seanio had completed his sentence and was no longer “in custody” within the meaning of 28 U.S.C. § 2255. On appeal, Seanio challenges the district court’s conclusion that his petition was untimely.

For the reasons set forth below, we affirm.

BACKGROUND

On November 1, 1988, following a jury trial, Seanio was convicted of one count of structuring a currency transaction in violation of 31 U.S.C. §§ 5324(3) and 5322(a). He was sentenced to one year imprisonment and two years’ supervised release. Scanio’s conviction was affirmed on appeal. United States v. Scanio, 900 F.2d 485 (2d Cir.1990). Seanio reported to prison on November 30, 1990.

While incarcerated, Seanio became eligible to spend the last third of his prison term in a community halfway house, and on July 29, 1991, he was transferred to the Salvation Army Adult Rehabilitation Center, Community Correction Center (the “Salvation Army”) to serve his remaining prison time. Thereafter, on November 27, 1991, Seanio was released from the Salvation Army facility and began his term of supervised release.

On November 29, 1993, Seanio filed the instant petition in which he moved to set aside his conviction and vacate his sentence, alleging ineffective assistance of counsel at his state court trial. On December 6, 1993, the district court dismissed the petition. The court found that Scanio’s term of supervised release expired at midnight on November 26, 1993, two years from the date he was released from the Salvation Army facility, and because Seanio had completed his sentence when he filed his petition on November 29, 1993, it was untimely.

Seanio now appeals.

DISCUSSION

On appeal, Seanio argues that even if the terms of his sentence were completed on November 26, 1993, the district court erred in dismissing his habeas corpus petition as untimely. Seanio maintains that given the clerk’s office in the district court was closed by Order of Chief Judge Michael A. Telesca on that day, Fed.R.Civ.P. 6(a), which operates to expand the period within which to file a motion, applied to make his claim timely. The government, on the other hand, contends that the district court properly dismissed the habeas petition because it lacked jurisdiction under 28 U.S.C. § 2255 to consider Scanio’s claim. We agree with the government’s position.

We review the district court’s factual findings for clear error, see Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); United States v. Springer, 946 F.2d 1012, 1015 (2d Cir.1991), and we review questions of law de novo, see Anderson v. McElroy, 953 F.2d 803, 805 (2d Cir.1992); United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir.1991). As a preliminary matter, we find ample support in the record for the district court’s determination that Scanio completed the terms of his sentence on November 26, 1993. The record indicates that Scanio was released from incarceration on November 27, 1991. His two-year term of supervised release therefore commenced on November 27, 1991 and expired at midnight on November 26, 1993. Thus, we next consider whether Scanio met the requirements for filing a ha-beas corpus petition.

Title 28 U.S.C. § 2255 states in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, ... may move the court which imposed the sentence to vacate, set aside or correct the sentence, (emphasis added).

In order to invoke habeas corpus review by a federal court, the petitioner must satisfy the jurisdictional “in custody” requirement of 28 U.S.C. § 2255. See United States v. Brilliant, 274 F.2d 618, 620 (2d Cir.) (“A district court is without jurisdiction to entertain a writ of habeas corpus or a § 2255 motion if the relator or movant is not in custody.”), cert. denied, 363 U.S. 806, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960). Indeed, the Supreme Court stated in Carafas v. LaVallee that “[t]he federal habeas corpus statute requires that the applicant must be ‘in custody’ when the application for habeas corpus is filed.” 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968) (emphasis added).

Although physical confinement is not necessary in order for a prisoner to challenge his sentence, see Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963) (holding prisoner on parole remains “in custody”), the Supreme Court has never gone so far as to hold that “a habeas petitioner may be ‘in custody¹ under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed,” Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (emphasis in original). The rationale in such a case is that the “habeas petitioner suffers no present restraint from a conviction.” Id. at 492, 109 S.Ct. at 1926; see, e.g., Ward v. Knoblock, 738 F.2d 134, 138-39 (6th Cir.1984) (holding that to confer habeas jurisdiction on petitioner, there must be significant deprivation of his liberty), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 974 (1985).

In sum, the habeas corpus statute confers jurisdiction to district courts to entertain habeas petitions for relief solely from persons who satisfy the status or condition of being “in custody” at the time the petition is filed, and a petitioner under supervised release may be considered “in custody.”

Because in the instant matter Scanio filed his habeas petition on November 29, 1993, three days after his term of supervised release expired, we find that at the time of the fifing, he was not “in custody.” See Maleng, 490 U.S. at 491, 109 S.Ct. at 1925. Under these circumstances, Scanio was juris-dictionafiy barred from asserting his habeas corpus claim.

We reject Scanio’s argument that Fed. R.Civ.P. 6(a) should be applied in this case to expand the time period within which to file his habeas motion. Fed.R.Civ.P. 6(a) provides that where the last day of a time period for filing a court paper is a Saturday, Sunday, holiday, or a day on which the clerk’s office is inaccessible, the period runs until the end of the next business day. Clearly, Fed.R.Civ.P. 6(a) does not extend the jurisdiction of the district court. See Fed. R.Civ.P. 82 (“These rules shall not be construed to extend or limit the jurisdiction of the United States district courts_”). Fed. R.Civ.P. 6(a) is a procedural rule that governs procedural matters and operates to enlarge certain fifing periods.

The “in custody” requirement of § 2255 is more than a fifing period; it is a status or condition that cannot be altered by a procedural rule. Either Scanio was “in custody” on November 29, 1993, or he was not. Because we find that Scanio was not “in custody,” we hold that the district court lacked jurisdiction to entertain his claim.

We have considered all of Scanio’s remaining arguments and find them to be without merit. Accordingly, we affirm the district court’s dismissal of Scanio’s habeas corpus petition.

CONCLUSION

Based on the foregoing, we affirm the judgment of the district court.

1 . November 26, 1993 followed Thanksgiving Day, which was November 25. As frequently occurs under these circumstances, the Chief Judge of the Western District of New York extended the holiday to include Friday, November 26, 1993 and, thus, the courthouse was not open from the close of business Wednesday until the following Monday.