Merle W. Unger, Jr. v. Michael W. Moore

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ JULY 26, 2001
THOMAS K. KAHN
No. 99-13776 CLERK
________________________
D. C. Docket No. 97-00624 CIV-T-26E
MERLE W. UNGER, JR.,
Petitioner-Appellant,
versus
MICHAEL W. MOORE,
ROBERT A. BUTTERWORTH,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District District of Florida
_________________________
(July 26, 2001)
Before BLACK and BARKETT, Circuit Judges, and HOBBS*, District Judge.
PER CURIAM:
*
Honorable Truman M. Hobbs, U.S. District Judge for the Middle District
of Alabama, sitting by designation.
Appellant, a state prisoner, appeals the district court's dismissal of his petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Appellees are officials of
the state of Florida. The district court ruled that Appellant was not “in custody” as
required by § 2254. As such, the district court held it lacked subject matter
jurisdiction. Pursuant to 28 U.S.C. § 2253, we granted a certificate of appealability
solely on the issue whether the district court correctly determined that it lacked subject
matter jurisdiction.
I. BACKGROUND
In 1976, Appellant was convicted by the courts of Maryland on various
charges, including murder.1 For these crimes, Appellant was sentenced to life
imprisonment plus a series of terms.2 On July 22, 1981, Appellant escaped from
1
On July 28, 1976, a jury in the Circuit Court for St. Mary’s County found
Appellant guilty of escape. On November 24, 1976, a jury in the Circuit Court for
Talbot County found Appellant guilty of murder, armed robbery, using a handgun
during a murder, and using a handgun during a robbery. On direct appeal,
however, the convictions for armed robbery and using a handgun during a robbery
were reversed.
2
According to the commitment records from St. Mary’s County and Talbot
County, Appellant’s sentences were as follows. First, for the escape charge,
Appellant was sentenced to ten years’ imprisonment to commence on June 1, 1976.
Second, for the murder charge, Appellant was sentenced to life imprisonment to
commence when his sentence for the escape charge terminated. Third, for the
charges of armed robbery, using a handgun during a robbery, and using a handgun
during a murder, Appellant was sentenced to imprisonment terms of 20 years, 5
years, and 15 years, respectively; these sentences were to run consecutive of one
2
Maryland prison. On August 20, 1981, Appellant appeared in Clearwater, Florida,
where he was arrested by local police for some more crimes that he committed in
Florida after his escape.
Three months later, on November 18, 1981, Appellant entered a guilty plea
on six counts for his Florida crimes, and the Florida court sentenced Appellant to
six concurrent prison terms.3 At the sentencing hearing, Appellant’s counsel
requested that the Florida sentences run concurrent to Appellant’s Maryland
sentences. The prosecutor did not object. In each of its judgments, the Florida
court stated that all six Florida sentences were to run concurrent to Appellant’s
previously imposed Maryland sentences.
another and to commence when his life term for the murder charge terminated. On
direct appeal, however, the convictions for armed robbery and using a handgun
during a robbery were reversed.
3
The six counts were charged in four different informations. Appellant
pled guilty to the following six counts: burglary (Fla. Stat. § 810.02), use of a
firearm in the commission of a felony (Fla. Stat. § 790.07(2)), aggravated assault
(Fla. Stat. § 784.021), felonious possession of a firearm (Fla. Stat. § 790.23), grand
theft auto (Fla. Stat. § 812.014), and grand theft (Fla. Stat. § 812.014). For the
burglary, Appellant was sentenced to 30 years’ imprisonment. For each of the
remaining counts, Appellant was sentenced to 5 years’ imprisonment. All six
terms were to run concurrently.
3
On December 23, 1981, however, Appellant filed a pro se motion. In that
motion, Appellant stated that he had refused extradition to Maryland,4 and he
requested to see his Florida sentencing judge to clarify his custody status. On
January 6, 1982, the Florida sentencing judge entered an order, stating in part:
[Appellant] is to serve the sentence previously imposed in the above
styled cause in the State of Florida. Upon completion of the sentence
in the State of Florida, the State of Florida will hereby notify the State
of Maryland.
As a result, Appellant remained in Florida prison until his Florida sentences
expired on December 5, 1990. Thereafter, Florida officials returned Appellant to
Maryland, so he could complete his Maryland sentences. Maryland officials
informed Appellant that he would not receive any credit towards his Maryland
sentences for the time spent serving his Florida sentences. On February 2, 1997,
Appellant, though serving a Maryland sentence, was returned to the custody of
Florida officials pursuant to the Interstate Corrections Compact. On March 19,
4
In fact, it is clear from the record that Appellant waged a lengthy legal
battle to avoid extradition to Maryland. On August 22, 1981, Florida officials
informed Maryland officials that Appellant refused to waive extradition. On
September 23, 1981, the state of Maryland submitted an extradition request to the
state of Florida. On November 16, 1981, Appellant filed a petition for a writ of
habeas corpus in Florida state court challenging extradition to Maryland. This
petition was denied on February 3, 1982, and the Florida Second District Court of
Appeal affirmed without opinion. On July 7, 1983, Appellant filed a federal
petition for a writ of habeas corpus challenging the Maryland extradition. On
April 15, 1985, the district court denied that petition, and Appellant did not appeal.
4
1997, Appellant filed the instant petition, alleging his Florida convictions were
constitutionally infirm.
II. DISCUSSION
For a federal court to have subject matter jurisdiction over a habeas
proceeding, the petitioner must be “in custody pursuant to the judgment of a State
court.” 28 U.S.C. § 2254; accord Maleng v. Cook, 490 U.S. 488, 490-91, 109
S. Ct. 1923, 1925 (1989). As such, federal courts normally lack jurisdiction over
petitions which challenge a conviction with a completely expired sentence. See
White v. Butterworth, 70 F.3d 573, 574 (11th Cir. 1995), as amended, 78 F.3d 500(11th Cir. 1996). The mere possibility that an expired conviction might be used to
enhance another conviction is insufficient to satisfy the “in custody” requirement
of § 2254. See Fox v. Kelso, 911 F.2d 563, 567 (11th Cir. 1990).
A petitioner is “in custody,” however, when he is incarcerated under a
current sentence that has been enhanced by an expired conviction. See Van Zant v.
Fla. Parole Comm’n, 104 F.3d 325, 327 (11th Cir. 1997). In Fox, the petitioner
was incarcerated for felony convictions, but his petition challenged expired
misdemeanor convictions. See Fox, 911 F.2d at 567-68. We held that the
petitioner was “in custody” for the expired misdemeanor convictions, because they
5
were delaying the date from which the petitioner would receive credit for time
served against his felony convictions. See id. at 568.
In the instant case, Appellant makes a similar challenge. He contends that, if
his Florida convictions were invalidated, he would receive credit for time served
against his Maryland convictions and be released at an earlier date. If this
contention is true, then Appellant is “in custody” under § 2254. In such a situation,
however, “the petitioner is deemed to be challenging the current sentence . . . rather
than directly challenging the expired conviction.” Van Zant, 104 F.3d at 327 (11th
Cir. 1997); see also Maleng, 490 U.S. at 493-94, 109 S. Ct. at 1926-27.
Therefore, Appellant is properly understood to be challenging his Maryland
sentence, not his expired Florida convictions.
Whether Maryland credits Appellant for these Florida convictions seems
purely a question of Maryland law. See Md. Ann. Code art. 27, § 638C (1957); see
also S.B. 1, Reg. Sess., Ch. 10, § 2 (Md. 2001) (modifying art. 27, § 638C and
recodifying at Md. Crim. Proc. § 6-218); Chavis v. Smith, 834 F.Supp. 153, 158-60
(D. Md. 1993). The legality of Appellant’s Florida convictions might need to be
decided as a factual predicate for analyzing the application of Maryland law. But it
also possible that Maryland law gives no effect to the Florida convictions, and that
6
the expiration of Appellant’s Maryland sentence cannot be said to have been
delayed by the Florida convictions.
We decline to resolve what Maryland law requires (and consequently the
question of federal jurisdiction over Appellant’s claims), because Appellant’s
petition contains a deficiency that must first be corrected. Appellant has sued the
wrong respondent: Appellant is challenging the Maryland sentence, and therefore
the proper respondent is the state of Maryland.
We faced a similar situation in Means v. Alabama, 209 F.3d 1241 (11th Cir.
2000). There, a federal prisoner sued Alabama officials to challenge an expired
Alabama conviction insofar as it enhanced his federal conviction. See Means, 209
F.3d at 1242. We held that the United States Attorney, not the state of Alabama,
was the proper respondent, and we remanded the case to the district court to correct
this deficiency. See id.; see also Birdsell v. Alabama, 834 F.2d 920, 922 (11th Cir.
1987) (noting that where current federal sentence has been improperly enhanced by
prior state conviction, collateral attack must brought under 28 U.S.C. § 2255 as a
challenge to federal sentence); Aziz v. LeFerve, 830 F.2d 184, 186-87 (11th Cir.
1987) (indicating that Florida official was not the proper respondent where
petitioner was challenging Florida conviction insofar as it enhanced New York
sentence). Similarly, in this case, Appellant challenges the expiration date of his
7
Maryland sentences. The validity of Appellant’s Florida convictions is only an
issue to the extent that Maryland law (and Appellant’s Maryland sentences) may
turn on them. As such, the proper respondent is the state of Maryland, not the state
of Florida.5
III. CONCLUSION
On remand, the district court shall dismiss from this suit all officials of the
state of Florida, and shall grant Appellant leave to amend his petition to sue the
appropriate officials from the state of Maryland. If Appellant amends his petition
accordingly, the district court, pursuant to 28 U.S.C. § 1404(a), may transfer this
action to the United States District Court for the District of Maryland.6
5
Appellant contends that Appellees never argued that the state of Maryland
was a necessary party, and therefore Appellees have waived this argument.
Appellant’s contention misses the mark. Appellees, as Florida officials, cannot
forfeit Maryland’s interest in incarcerating Appellant for violating Maryland’s
criminal statutes. See Aziz v. LeFerve, 830 F.2d 184, 186-87 (noting that Florida
Attorney General could not purport to represent interests of New York in
defending New York conviction enhanced by Florida conviction). Additionally, it
makes no difference that Appellant is being held in a Florida prison pursuant to the
Interstate Corrections Compact. Under the Compact, Appellant remains subject to
the jurisdiction of Maryland. See Fla. Stat. § 941.56, art. IV(c) (2000).
6
To be clear, in this opinion, we do not pass judgment on the merits of
Appellant’s claims. In particular, we express no opinion as to whether Appellant’s
claims are meritorious in light of the Supreme Court’s recent decisions in
Lackawanna County District Attorney v. Coss, ___ U.S. ___, 121 S. Ct. 1567(2001) and Daniels v. United States, ___ U.S. ___, 121 S. Ct. 1578 (2001).
8
VACATED and REMANDED.
9