United States Court of Appeals,
Eleventh Circuit.
No. 95-4951
Non-Argument Calendar.
Phillip VAN ZANT, Petitioner-Appellant,
v.
FLORIDA PAROLE COMMISSION, Respondent-Appellee.
Jan. 24, 1997.
Appeal from the United States District Court for the Southern
District of Florida. (No. 94-14237-CV-JCP), James C. Paine, Judge.
Before TJOFLAT, COX and BLACK, Circuit Judges.
PER CURIAM:
Phillip Van Zant appeals the district court's denial of his
pro se habeas petition challenging a parole revocation proceeding.
We reverse and remand with instructions to dismiss the petition for
lack of subject matter jurisdiction because Van Zant was not "in
custody" under 28 U.S.C. § 2241 to challenge the parole revocation
at the time of the filing of his petition.
I. BACKGROUND
In 1979, Van Zant entered a plea of nolo contendere to second
degree murder and was sentenced to life imprisonment. On August
16, 1983, the Florida Parole Commission (the Commission) released
Van Zant on parole. On December 18, 1985, his parole was revoked.
On June 3, 1986, Van Zant was released on parole for a second time.
His second parole was revoked on September 30, 1987. As a result
of this second violation, the Commission enhanced Van Zant's
presumptive parole release date by five years for having two parole
revocations and set the date at October 29, 2006. From 1989 to
1991, Van Zant unsuccessfully challenged the second parole
revocation in state courts. After exhausting his state remedies,
Van Zant filed a federal habeas corpus petition. On July 29, 1992,
the district court dismissed the petition as moot because Van Zant
had been released on parole for the third time on October 29,
1991.1 Van Zant's third parole was revoked on August 19, 1992. On
January 12, 1993, the Commission established Van Zant's next parole
date at July 23, 2005, having enhanced it by ten years for three
parole revocations. Van Zant is currently incarcerated.
On September 22, 1994, Van Zant filed the instant habeas
petition reasserting his previous challenges to the second
revocation. He alleged that at the preliminary hearing he was
denied counsel, denied the right to confront witnesses, prejudiced
by the admission of uncharged criminal conduct, and denied the
opportunity to present witnesses. He also alleged that his parole
revocation violated Florida statutes and that the Commission had
abused its discretion. The Commission responded that Van Zant was
no longer "in custody" under 28 U.S.C. § 2241 to challenge the
second parole revocation because he had been released from the
incarceration resulting from the second parole revocation.
The magistrate judge found that Van Zant was "in custody"
because the second revocation had been used to enhance his current
parole date. The magistrate judge then recommended denying relief,
finding Van Zant's claims meritless. The district court adopted
the magistrate's report, and denied Van Zant's petition. On
1
It appears that Van Zant did not pursue a timely appeal of
his federal habeas petition. On October 14, 1994, the district
court entered an "Order Denying Motion for Belated Appeal."
appeal, Van Zant repeats the merits of his claims.
II. DISCUSSION
Federal district courts have jurisdiction to entertain habeas
petitions only from persons who are "in custody in violation of the
Constitution or laws or treaties of the United States." 28 U.S.C.
§ 2241(c)(3). A petitioner is not "in custody" to challenge a
conviction when the sentence imposed for that conviction has
completely expired. Maleng v. Cook, 490 U.S. 488, 490-91, 109
S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989). When 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. at 492, 109 S.Ct. at 1926. However, we have
held that the Supreme Court in Maleng left open the possibility
that petitioners who are currently incarcerated may challenge the
enhancement of their current sentences by prior convictions for
which the sentence has completely expired. White v. Butterworth,
70 F.3d 573, 574 (11th Cir.1995), corrected, 78 F.3d 500 (11th
Cir.1996); Harper v. Evans, 941 F.2d 1538, 1539 (11th Cir.1991);
Battle v. Thomas, 923 F.2d 165, 166 (11th Cir.1991). In order to
meet the "in custody" requirement, the petitioner is deemed to be
challenging the current sentence that has been enhanced by an
expired conviction, rather that directly challenging the expired
conviction. Therefore, a petitioner may challenge an expired
conviction only if, at the time of the filing of the petition, (1)
the petitioner is incarcerated under a current sentence that (2)
has been enhanced by the expired conviction.2
The issue is whether Van Zant is incarcerated under a current
sentence that has been enhanced by the parole revocation he seeks
to expunge. Van Zant asserts that the imposition of a parole date
is equivalent to incarceration under a current sentence and his
parole date has been enhanced by an extra five years on account of
the parole revocation.3 He seeks relief from this Court to expunge
the second parole revocation from his record so that it will not be
used to enhance his current parole date.
Initially, we note that the grant of parole is entirely
discretionary, and the parole release date is just a presumption,
not an effective release date. See Florida Parole and Probation
Commission v. Paige, 462 So.2d 817, 819 (Fla.1985) ("Placement of
the inmate on parole on the date of his presumptive parole release
2
This case does not concern the issue of mootness. The
issue of jurisdiction under the habeas statute precedes and is
separate from the issue of mootness. Tyars v. Finner, 709 F.2d
1274, 1278-80 (9th Cir.1983). Mootness is an issue of
constitutional dimension. Id. If the district court has
jurisdiction at the time of the filing of the habeas petition,
but at the time of decision, the challenged sentence has expired,
the court must decide whether the petition is moot. A
determination that the petitioner may suffer adverse collateral
consequences from an expired sentence will not, however, create
jurisdiction when no jurisdiction was present at the time the
petition was filed.
3
We do not decide whether imposition of a parole date is
equivalent to incarceration under a current sentence. We note
that Van Zant was imprisoned for life and his habeas petition
does not challenge that conviction. He challenges the revocation
of his second parole in 1987 which resulted in a reinstatement of
his life sentence. The sentence of reinstatement expired when he
was subsequently paroled for the third time in 1991. The proper
time to file a federal habeas petition in this case was after the
second parole revocation and before being subsequently paroled.
Apparently, Van Zant filed such a petition, but he did not seek
review of the district court's denial of the petition. See supra
note 1.
date ... is not automatic."). In this case, Van Zant was released
in 1991, well before his parole date of October 29, 2006. The
Commission has "the ultimate discretion in deciding whether to
parole." Id. The Supreme Court has directed that federal "courts
should be particularly deferential to the informed discretion of
corrections officials." Turner v. Safley, 482 U.S. 78, 90, 107
S.Ct. 2254, 2262, 96 L.Ed.2d 64 (1987).
We hold that the relationship between the challenged parole
revocation and Van Zant's current parole date is too "speculative
and remote" for us to find that the parole revocation enhanced Van
Zant's parole date. Sinclair v. Blackburn, 599 F.2d 673, 675-76
(5th Cir.1979), cert. denied, 444 U.S. 1023, 100 S.Ct. 684, 62
L.Ed.2d 656 (1980).4 In Sinclair, we held that the petitioner was
not in custody to challenge a prior expired conviction when that
conviction had merely been one of many factors used to deny parole.
We held that the relationship between the prior expired conviction
and the current custodial sentence was too "speculative and remote"
to establish custody. Id. at 676. The effect of the parole
revocation in this case is even more speculative than in Sinclair.
With two parole revocations on Van Zant's record, the Commission
set the parole date at October 29, 2006. With three parole
revocations on his record, however, the Commission accelerated his
parole date to July 23, 2005. Even assuming that imposition of a
parole date is equivalent to incarceration under a current
4
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir.1981) (en banc), this Court adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to close
of business on September 30, 1981.
sentence, Van Zant cannot challenge the parole revocation because
its enhancement effect on his current parole date is too
"speculative and remote." The district court, therefore, erred in
addressing Van Zant's claims on the merits because it had no
jurisdiction to entertain Van Zant's habeas petition.
III. CONCLUSION
We reverse and remand for the district court to dismiss the
petition for lack of subject matter jurisdiction.
REVERSED and REMANDED.