Opinion
Civil No. 04-2995 (JRT/SRN).
February 10, 2005
Michael T. McCarthy, 7010 19th Street North #7, Oakdale, MN 55128, petitioner pro se.
Kelly O'Neill Moller, OFFICE OF THE MINNESOTA ATTORNEY GENERAL, 445 Minnesota Street, Suite 1800, St. Paul, Minnesota 55101, for respondent.
ORDER
Petitioner Michael McCarthy was convicted of disorderly conduct in Washington County, Minnesota and sentenced to five days in jail, one year of probation commencing June 5, 2002, and a fine. The court ordered that, in the event that petitioner filed an appeal, the sentence would be stayed. Petitioner appealed his conviction to the Minnesota Court of Appeals and, later, to the Minnesota Supreme Court. Washington County Community Corrections interpreted the court's order as staying the jail time, but not the probation. Accordingly, the probation office considered petitioner to be on probation from June 5, 2002 through June 4, 2003, at which point petitioner's probation expired. Petitioner's appeals remained pending during this entire period. The Minnesota Court of Appeals denied petitioner's appeal and the Minnesota Supreme Court denied further review of petitioner's case. Pursuant to the district court's order, petitioner served the five-day jail sentence beginning September 12, 2003.
Petitioner filed the instant petition for writ of habeas corpus under 28 U.S.C. § 2254. The Magistrate Judge concluded that petitioner is not in custody for purposes of 28 U.S.C. § 2254 and, accordingly, recommended that the petition be dismissed for lack of jurisdiction. Charlton v. Morris, 53 F.3d 929, 929 (8th Cir. 1995) (stating that district court does not have jurisdiction to consider merits of § 2254 petition filed by person not in custody). Petitioner objected. The Court has conducted a de novo review of the petitioner's objection pursuant to 28 U.S.C. § 636 (b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court adopts the Report and Recommendation of the Magistrate Judge and grants respondent's motion to dismiss.
The Court may only consider a petition for habeas relief from an individual in custody under the conviction or sentence being challenged at the time of the filing of the petition. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citing 28 U.S.C. § 2254(a)). An individual who is physically confined or whose release is conditioned upon certain limitations on his liberty due to the terms of a court sentence is considered "in custody" for purposes of the statute. Id. (citation omitted). Petitioner served his five-day jail sentence from September 12, 2003 through, presumably, September 17, 2003. Petitioner had already completed his one-year probationary period. Thus, as of September 17, 2003, petitioner was no longer subject to limitations on his liberty stemming from his conviction and sentence and was, therefore, no longer in custody. Consequently, this Court does not have jurisdiction to consider the instant petition, and it must be dismissed.
The Court finds nothing unusual in the order in which petitioner served his sentence. If petitioner had not been eligible for bail while his appeal of his appeal was pending, he would have remained incarcerated. The time spent incarcerated awaiting the outcome of his appeal would, necessarily, have counted against the term of imprisonment imposed as part of his sentence. That is precisely what happened in petitioner's case, except that, because he was eligible for supervised release while he pursued his appeal, the time he spent under the supervision of Washington County Community Corrections counted against the probationary portion of his sentence.
The Court also notes that if jurisdiction were proper in this case, the Court would nevertheless dismiss the petition. Petitioner's appeal of his conviction to the Minnesota Court of Appeals claimed that the evidence presented at trial was insufficient to support the conviction. (Pet. for Writ of Habeas Corpus.) See also State v. McCarthy, 659 N.W.2d 808, 809 (Minn.Ct.App. 2003). In the instant matter, petitioner claims that the state trial court judge was not impartial, that he received ineffective assistance of counsel, and that the Minnesota Supreme Court inappropriately denied his request for further review. It is well established that a federal court may not entertain a petition for a writ of habeas corpus unless the petitioner has first exhausted all available state court remedies for all of his claims. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842, 848 (1999) (petitioner's failure to present his federal habeas claims to the state supreme court in a timely manner results in a procedural default of those claims); Rose v. Lundy, 455 U.S. 509 (1982). None of the claims that petitioner raises in the instant petition were raised to the Minnesota Court of Appeals and, as a result, this petition is barred.
The Court finds it unlikely that some other court would decide the issues raised in this petition differently and therefore concludes that petitioner has not made the "substantial showing of the denial of a constitutional right" necessary to be granted a Certificate of Appealability. 28 U.S.C. § 2253(c)(2); Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994). The Court, therefore, denies the petition for writ of habeas corpus and will not grant a Certificate of Appealability.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, the Court OVERRULES petitioner's objection [Docket No. 7] and ADOPTS the Magistrate Judge's Report and Recommendation [Docket No. 6]. Accordingly, IT IS HEREBY ORDERED that:
1. Respondent's motion to dismiss petition for writ of habeas corpus [Docket No. 3] is GRANTED.
2. Petitioner's petition for writ of habeas corpus [Docket No. 1] is DENIED.
3. For purposes of appeal, the Court does not certify the issues raised in petitioner's motion as petitioner has not made a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), as is required under the appeal statute for the issuance of a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A).
4. This case is DISMISSED WITHOUT PREJUDICE.