United States Court of Appeals,
Eleventh Circuit.
Nos. 94-2901, 94-2989
Non-Argument Calendar.
Timothy Edward WHITE, Petitioner-Appellant,
v.
Robert A. BUTTERWORTH, The Attorney General for the State of
Florida, Harry K. Singletary, Jr., Secretary of the Florida
Department of Corrections, Respondents-Appellees.
Dec. 7, 1995.
Appeals from the United States District Court for the Middle
District of Florida. (No. 93-1488-CIV-J-10), Wm. Terrell Hodges,
Judge.
Before KRAVITCH, EDMONDSON and BARKETT, Circuit Judges.
PER CURIAM:
Timothy White, a Florida prisoner, appeals the dismissal of
his § 2254 habeas petition and the denial of his motion for
reconsideration of the dismissal. The district court dismissed the
petition after concluding that White did not satisfy § 2254's
jurisdictional "in custody" requirement because he was attacking an
"expired" sentence. Upon review of the record, we determine that
the court erred in finding that White was not "in custody" and
therefore reverse the order dismissing the petition and remand for
further proceedings.
In 1985, White pled guilty to a crime in Florida and received
five years probation. When he violated the terms of his probation
in Alabama in 1987, he was extradited to Florida, where he pled
guilty to violating his probation and received a four-year
sentence, to run concurrently with an unspecified Alabama sentence.
After serving the 1987 Florida sentence, White was convicted of
another crime in Florida in 1992 and received an enhanced sentence
as a habitual felony offender; the enhanced sentence was based in
part on his 1987 conviction for probation violation. He currently
is serving the enhanced sentence.
White filed this pro se § 2254 habeas petition in 1993,
apparently challenging his 1987 conviction on several
constitutional grounds. In response to an order to show cause why
the petition should not be dismissed, White admitted that he was
currently incarcerated pursuant to his 1992 sentence, but claimed
that he still was "in custody" as a result of the 1987 conviction
because his 1992 sentence was enhanced due to his 1987 conviction.
The district court dismissed the petition and thereafter summarily
denied White's motion for reconsideration.
District courts may entertain petitions for habeas relief
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(a) (emphasis added); Maleng v. Cook, 490 U.S. 488, 490, 109
S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989). Jurisdiction normally
does not extend to a petitioner who challenges a conviction after
his sentence has fully expired. Id., 488 U.S. at 490-92, 109 S.Ct.
at 1925-26. This Court has held, however, that "a habeas
petitioner may challenge a fully expired prior conviction if he is
currently incarcerated as a result of a current sentence that was
enhanced by his prior conviction." Harper v. Evans, 941 F.2d 1538,
1539 (11th Cir.1991). Stated differently, a habeas petitioner may
challenge a current sentence on the ground that it was enhanced by
an allegedly invalid, prior conviction.
The State argues that the district court correctly found that
White was challenging only his expired 1987 conviction. We
disagree. Having read White's papers with the liberality due pro
se petitioners, we find that White is claiming that his current
sentence was enhanced by his allegedly invalid 1987 conviction. In
response to the court's show cause order, for example, White
asserted that he is "currently incarcerated ... pursuant to the
[1992] conviction ... where the State has relied upon the [1987]
sentence ... for an enhancement sentence...." R1-20 at 2-3. The
State's argument is based on "a distinction without a difference.
Whether or not the petition is framed facially in terms of an
attack on the enhanced sentence or the expired sentence, the
reality is that [White] is ... "in custody' as result of a prior
and alleged illegal conviction." Harper, 941 F.2d at 1539. Thus,
the court's conclusion that White failed to meet the "in custody"
requirement of § 2254 was erroneous.1
The State argues that this Court should nevertheless affirm
the dismissal because White's claims are unexhausted and
procedurally barred. The district court's show cause order,
however, merely required that White explain why he was "in custody"
1
White also appears to have made the argument that he was
"in custody" as a result of the 1987 conviction because Alabama
had placed a detainer on him for the conviction that should have
run concurrently with his 1992 sentence. We note that a
petitioner held in one state with a detainer lodged against him
by another state is "in custody" for purposes of attacking the
detainer. See Braden v. 30th Judicial Circuit Court of Kentucky,
410 U.S. 484, 498-499 & n. 15, 93 S.Ct. 1123, 1131-32 & n. 15, 35
L.Ed.2d 443 (1973); Stacey v. Warden, Apalachee Correctional
Institution, 854 F.2d 401, 403 (11th Cir.1988).
and did not ask him to respond to the State's procedural default
arguments. Because White has not been given an opportunity to
respond to any issues of exhaustion or procedural bar, we will not
affirm on this ground. See Battle v. Thomas, 923 F.2d 165, 166
(11th Cir.1991).
For the foregoing reasons, we REVERSE the district court's
order dismissing White's petition and REMAND the case for further
proceedings consistent with this opinion. In light of this ruling,
we DISMISS AS MOOT White's appeal of the order denying his motion
for reconsideration of the dismissal.