Opinion
No. 3:03-CV-2685-R.
July 22, 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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Nature of the Case : This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties : Petitioner is currently incarcerated in the Texas Department of Criminal Justice Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural History : In 1973, petitioner pled guilty to forgery and passing a forged instrument in Dallas County, and he was placed on three years probation. His probation was subsequently revoked, and he appealed. (Pet. Writ of Habeas Corpus (Pet.) at 2.) His conviction was affirmed on appeal. ( Id. at 3.) Nineteen years later, on July 7, 2003, petitioner challenged the 1974 forgery conviction in a state writ of habeas corpus, which was denied on September 17, 2003. ( Id. at 3-4.)
Although petitioner indicates that he pled guilty in 1973, he refers to the conviction as occurring in 1974. The Court will thus refer to the conviction as the 1974 conviction.
On October 27, 2003, petitioner filed the instant petition to challenge his 1974 forgery conviction (Cause No. C74-5289-PQ). ( See Pet. at 2, 9; Mem. Supp. at 1-7.) He claims that the conviction is void and was wrongly used to enhance two later Dallas County convictions (Cause Nos. F83-10873-R and F83-10874-R, hereinafter referred to as the 1984 convictions) and a later Denton County conviction (Cause No. F-90-299-C, hereinafter referred to as the 1990 conviction). (Pet. at 7; Mem. Supp. at 1-7.) He submits that he remains in custody in Denton County on the 1990 conviction. (Mem. Supp. at 2.) The Court has not ordered respondent to answer the federal petition.
II. JURISDICTION
"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 (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). They have "a continuing obligation to examine the basis for jurisdiction." See MCG, Inc. v. Great W. Energy Corp., 896 F.2d 170, 173 (5th Cir. 1990). The Court may sua sponte raise the jurisdictional issue at any time. Id.; Burge v. Parish of St. Tammany, 187 F.3d 452, 465-66 (5th Cir. 1999). Fed.R.Civ.P. 12(h)(3) requires that federal courts dismiss an action "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction over the subject matter." Because a review of the documents filed in this action show that the Court lacks subject matter jurisdiction, this action should be dismissed.
Federal district courts have jurisdiction to entertain petitions for writs of habeas corpus only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254. One satisfies the "in custody" requirement, when the challenged conviction has not fully expired at the time the petitioner files a petition under § 2254. See Carafas v. Lavallee, 391 U.S. 234, 238 (1968). One 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 (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 1974 conviction. The sentence for that conviction fully expired long ago. Having fully served his sentence for the Dallas forgery conviction, petitioner is no longer "in custody" such that he can challenge that conviction. Although petitioner claims that his 1974 conviction was improperly used to enhance punishment in his two 1984 convictions and his 1990 conviction, the Court declines to construe the claims of petitioner as a challenge to those convictions. First, he is not in custody on the two 1984 convictions. Second, petitioner has another habeas action pending in this Court in which he challenges those two convictions. See Hampton v. Dretke, No. 3:04-CV-1409-D (N.D. Tex.). In addition, the Court would lack jurisdiction over any challenge to the 1990 conviction in Denton County 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 in the Ellis Unit of TDCJ-CID when he filed the action. That unit is located in Walker County, which is 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(d)(3).
Although petitioner is "in custody" on the 1990 Denton County conviction, ( see Mem. Supp. at 2), he is not in custody for his 1974 Dallas County conviction — the conviction he challenges in the instant action. That he is remains in custody on some other imposed sentence has no bearing on whether he is in custody on the 1974 conviction. For these reasons, the Court lacks jurisdiction over the instant federal petition that challenges petitioner's 1974 conviction for forgery and passing a forged instrument.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DISMISS the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254 for lack of subject matter jurisdiction.