Opinion
No. 3:04-CV-1409-D.
October 13, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief brought by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Ellis I Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Huntsville, Texas. Respondent is the Director of TDCJ-CID. No process has been issued in this case. However, on July 12, 2004, the magistrate judge issued a questionnaire to Petitioner, who filed his answers on August 2, 2004.
Statement of Case: Following his plea of not guilty, Petitioner was convicted of two offenses of forgery in the 265th Judicial District Court of Dallas County, Texas, Cause Numbers F83-10873-R and F83-10874-R. On January 6, 1984, punishment was assessed at fifteen years imprisonment. (Petition (Pet.) at 2 and Answer to Question 2). His convictions were affirmed on direct appeal. Hampton v. State, Nos. 05-84-00179-CR and 05-84-00178-CR (Tex.App. — Dallas, May 3, 1985), http://www.courtstuff.com/FILES/05/84/05840179.HTM. Eighteen years later, on July 21, 2003, Petitioner challenged the 1984 forgery convictions in a state writ of habeas corpus, which was later denied by the Texas Court of Criminal Appeals. (Answer to Question 4).
In the instant habeas action, Petitioner seeks to attack his 1984 forgery convictions (See Pet. at 2, 9; Mem. Supp. at 2-12). He claims that the convictions are void and were wrongly used to enhance two later convictions, a Denton County conviction (Cause No. F-90-299-C, hereinafter referred to as the 1990 conviction), and a Tarrant County conviction (Cause No. 0621668-D, hereinafter referred to as the 1997 conviction). (Mem. Supp. at 2-12, and Answer to Question 1). He submits that he remains in custody in Denton and Tarrant Counties on the 1990 and 1997 convictions. (Mem. Supp. at 2 and Answer to Question 1). Findings and Conclusions: The court must first examine whether it has jurisdiction in this case. "Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute, which is not to be expanded by judicial decree." Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (citations omitted). They "must presume that a suit lies outside this limited jurisdiction, and the burden of establishing federal jurisdiction rests on the party seeking the federal forum." Howery v. Allstate Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001).
Petitioner alleges that his 1984 convictions were enhanced on the basis of a 1974 conviction for forgery from Dallas County, Cause No. C74-5289-PQ. (Mem. in Supp. at 2). The court need not address this additional claim. Judge Jerry Buchmeyer recently declined to reach such a claim when he dismissed Petitioner's prior habeas corpus petition for want of jurisdiction. See Hampton v. Dretke, No. 3:03-CV-2685-R, 2004 WL 1656608 (N.D. Tex., Dallas Div. Jul. 22, 2004) (recommendation of Magistrate Judge Ramirez), adopted, 2004 WL 1656608 (Aug. 9, 2004).
A federal court may consider a writ of habeas corpus only "on behalf of a person in custody . . . in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petitioner satisfies the "in custody" requirement, when the challenged conviction has not fully expired at the time he/she files a petition under § 2254. See Carafas v. Lavallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). A petitioner is not "in custody" for a particular conviction when he or she "suffers no present restraint" from the challenged conviction. Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). "[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." Id.
In this instance, Petitioner is not in custody on his 1984 convictions. The sentence for those convictions has fully expired. (Answer to Question 1 and 2). Having fully served his sentence for the 1984 forgery convictions, petitioner is no longer "in custody" such that he can challenge those convictions. As a result he cannot bring a federal habeas action based solely on his 1984 forgery convictions. See Maleng, 490 U.S. at 493.
In Maleng, 490 U.S. at 493-94, and Lackawanna County District Attorney v. Coss, 532 U.S. 394, 401-02, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001), the Supreme Court acknowledged that because a § 2254 petition could be construed as asserting a challenge on a current sentence, as enhanced by an allegedly invalid prior conviction, a petitioner could satisfy the "in custody" requirement for federal habeas jurisdiction despite the full expiration of his sentence.
Although petitioner claims that his 1984 convictions were improperly used to enhance punishment in his 1990 and 1997 convictions, the court declines to construe Petitioner's claims as a challenge to those convictions. The District Court would lack jurisdiction over any challenge to the 1990 Denton County conviction because a petitioner may only file an action under 28 U.S.C. § 2254 where he is incarcerated or was convicted. See 28 U.S.C. § 2241(d). Petitioner was incarcerated at the Ellis Unit of TDCJ-CID when he filed this action. That unit is located in Walker County, which is located in the Southern District of Texas, Houston Division. See 28 U.S.C. § 124(b)(2). Furthermore, his 1990 Denton County conviction occurred in the Eastern District of Texas, Sherman Division. See id. § 124(c)(3).
Similarly the District Court would lack jurisdiction over a petition challenging the 1997 Tarrant County conviction because Petitioner previously challenged that conviction in the Forth Worth Division of this court, and that court in turn dismissed it with prejudice as time barred. See Hampton v. Cockrell, 4:00cv1726 (N.D. Tex., Fort Worth Div., Sep. 17, 2001). As a result, Petitioner would first need to seek leave to file a second or successive § 2254 petition in the United States Court of Appeals for the Fifth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A). See In re Epps, 127 F.3d 364 (5th Cir. 1997) (setting out the requirements for filing a motion for authorization to file a successive habeas petition in the Fifth Circuit Court of Appeals). Unless the Fifth Circuit Court of Appeals first grants Petitioner leave to file a second or successive habeas petition with respect to his 1997 conviction, this court lacks jurisdiction to consider the same. Hooker v. Sivley, 187 F.3d 680, 682 (5th Cir. 1999); United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court dismiss the petition for a writ of habeas corpus for want of jurisdiction.
The clerk will mail a copy of this recommendation to Petitioner Gary Hampton, #776384, TDCJ, Ellis I Unit, 1697 FM 980, Huntsville, Texas 77343.