United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
M. BORDEN, UNITED STATES MAGISTRATE JUDGE.
case is before the court on a pro se petition for
writ of habeas corpus under 28 U.S.C. § 2254 filed by
Daoud Boone on July 15, 2016. Doc. 1. Boone challenges his
2009 conviction for unlawful possession of a controlled
substance and his resulting sentence of 18 months in prison.
For the reasons that follow, it is the recommendation of the
Magistrate Judge that Boone's petition be dismissed
because this court lacks jurisdiction.
was originally tried in the Circuit Court of Montgomery
County in September 2009 on charges of capital murder and
unlawful possession of a controlled substance. In the
September 2009 trial, Boone was found guilty of unlawful
possession of a controlled substance, but a mistrial was
granted on the capital murder charge. A new trial on the
capital murder charge was held in November 2010, the results
of which are not the subject of Boone's instant
jury returned its verdict finding Boone guilty of unlawful
possession of a controlled substance on September 11, 2009.
On November 3, 2009, the trial court sentenced Boone to 18
months in prison. Doc. 7-15 at 7. At the sentencing hearing,
the trial court noted that Boone had been in jail awaiting
trial for 23 months and that he was entitled to jail credit
against the sentence it was imposing. Doc. 7-15 at 7. The
sentence contained no term of probation.
appealed. His appellate counsel filed a “no
merit” brief and motion to withdraw under Anders v.
California, 386 U.S. 738 (1967). Doc. 7-12. On September
4, 2010, the Alabama Court of Criminal Appeals affirmed
Boone's conviction in an unpublished memorandum opinion.
March 2011, Boone filed a post-conviction Rule 32 petition in
the trial court, which the trial court denied. See
Docs. 7-1 at 15 & 7-2 at 58-60. Boone appealed, and on
March 11, 2016, the Alabama Court of Criminal Appeals
affirmed the trial court's denial of his Rule 32
petition. Doc. 7-7. Boone's application for rehearing was
overruled, and his subsequent petition for writ of certiorari
was denied by the Alabama Supreme Court. Docs. 7-9 &
7-10. A certificate of judgment issued on July 8, 2016. Doc.
filed this § 2254 petition challenging his controlled
substance conviction and resulting sentence on July 15, 2016.
district courts have jurisdiction to entertain § 2254
habeas petitions only from petitioners who are “in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2254(a);
see also 18 U.S.C. § 2241(c)(3); Means v.
Alabama, 209 F.3d 1241, 1242 (11th Cir. 2000). The
Supreme Court has stated that § 2254's “in
custody” requirement means “that the habeas
petitioner [must] be ‘in custody' under the
conviction or sentence under attack at the time his petition
is filed.” Maleng v. Cook, 490 U.S. 488,
490-91 (1989). A defendant who is no longer serving a
sentence imposed upon his conviction cannot bring a federal
habeas petition directed solely at that conviction.
Lackawanna Cnty. Dist. Atty. v. Coss, 532 U.S. 394,
indicated above, Boone was sentenced to 18 months in prison
for his controlled substance conviction on November 3, 2009.
Doc. 7-15 at 7. No. term of probation was imposed on that
sentence, and the trial court noted that Boone was entitled
to jail credit against the sentence it was imposing. Doc.
7-15 at 7. An Alabama Department of Corrections
(“ADOC”) inmate summary sheet submitted by the
Respondents with their answer reflects that the ADOC
considered Boone to have been sentenced to “time
served” for his controlled substance conviction. Doc.
7-14 at 3. The same inmate summary sheet and ADOC's
website both reflect that the only state-court
judgment under which Boone is in custody is his sentence of
life imprisonment without parole imposed in November 2010
upon his conviction for capital murder. Consequently, the
18-month sentence imposed for Boone's 2009 controlled
substance conviction expired well before Boone filed the
instant § 2254 petition on July 15, 2016. Therefore,
Boone does not meet the “in custody” requirement
for purposes of his challenge to his 2009 conviction and
resulting sentence. Maleng, 490 U.S. at 490-91.
it is the RECOMMENDATION of the Magistrate Judge that the
petition for habeas corpus relief under 28 U.S.C. § 2254
be DENIED and this case DISMISSED with prejudice, as this
court lacks jurisdiction to consider Boone's claims for
further ORDERED that the parties shall file any objections to
this Recommendation on or before June 21,
2018. A party must specifically identify the factual
findings and legal conclusions in the Recommendation to which
objection is made; frivolous, conclusive, or general
objections will not be considered. Failure to file written
objections to the Magistrate Judge's findings and
recommendations under the provisions of 28 U.S.C. §
636(b)(1) shall bar a party from a de novo
determination by the District Court of legal and factual
issues covered in the Recommendation and waives the right of
the party to challenge on appeal the District Court's
order based on unobjected-to factual and legal conclusions
accepted or adopted by the District ...