Opinion
Case No: 8:06-CV-1452-T-30TGW.
October 27, 2006
ORDER
THIS matter comes before the Court for consideration of a Motion to Set Aside Judgement filed by Petitioner pro se (Dkt. 1). Petitioner is challenging an amended sentence and order modifying his probation entered in the Thirteenth Judicial Circuit Court, Hillsborough County, Florida on April 30, 2004 (Dkt. 1 ¶ 3). The Court construes Petitioner's Rule 60(b) motion as a request for federal habeas relief pursuant to 28 U.S.C. § 2254. Pursuant to Rule 4 of the Rules Governing § 2254 Cases, this Court is required to conduct a preliminary review of the petition for writ of habeas corpus, and "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, . . . make an order for summary dismissal."
Petitioner makes a number of allegations against the public defenders appointed to represent him and Florida Department of Corrections employee Alexander Segui. Without providing any information regarding the charges or sentence imposed, Petitioner asserts that he was not provided effective assistance of counsel in the prosecution of State v. Vazquez, Case No. 01-14845 (Fla. 13th Jud. Cir. Court. 2004). The crux of his complaint appears to be his assertions that (1) he was not given credit by the City of Tampa for the correct number of community service hours he performed pursuant to an order by the trial court, and (2) the public defender appointed to represent him failed to protect his rights or follow his instructions in filing an appeal of the trial court's decision.
Petitioner was granted leave to file a belated appeal of the trial court's decision. See Vazquez v. State, Case No. 2D04-13250 (Fla. 2d DCA 2005). In its decision rejecting Petitioner's request for relief, the state appellate court found as follows:
Jose N. Vazquez appeals from an amended sentence and order modifying his probation. We dismiss this appeal because Vazquez raises an issue which is rendered moot by the fact that he has served his sentence in its entirety and is no longer on probation. See Williams v. State, 549 So.2d 734 (Fla. 2d DCA 1989).
In order to prevent confusion in any future proceedings, however, we note that the amended sentence contains a scrivener's error. In sentencing Vazquez, the trial court withheld adjudication. The amended sentence incorrectly reflects that Vazquez was "adjudged guilty."
Dismissed as moot.Vazquez v. State, 930 So.2d 860 (Fla. 2d DCA 2006).
Petitioner is attempting to raise a direct challenge to an expired conviction. This he cannot do. See Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001) (finding that because "[Petitioner] is no longer serving the sentences imposed pursuant to his 1986 convictions, [he] therefore cannot bring a federal habeas petition directed solely at those convictions."). The only avenue for challenging the validity of prior convictions is by challenging the validity of an enhanced sentence. See Battle v. Thomas, 923 F.2d 165, 166 (11th Cir. 1991) (holding that petitioners who are currently incarcerated may attack the enhancement of their current sentences by prior, expired sentences). Here, Petitioner is not currently incarcerated or otherwise under State supervision as a result of the 2004 proceedings. The Court finds, therefore, that this matter is subject to summary dismissal without a response from Respondents.
ACCORDINGLY, the Court ORDERS that:
1. The Motion to Set Aside Judgement, construed as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, is DENIED.
2. The Clerk shall enter judgment against Petitioner, terminate all pending motions, and close this case.
DONE and ORDERED.