United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, 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
Charles Randall Harrison on January 14, 2017. Doc. #
Harrison is a federal inmate at a federal facility in
Lexington, Kentucky. He is currently serving a lengthy
sentence imposed by the United States District Court for the
Northern District of Florida on convictions for conspiracy to
possess with intent to distribute methamphetamine and
possession of amphetamines. In his § 2254 petition,
Harrison attacks his 1989 conviction in the Covington County,
Alabama Circuit Court for unlawful distribution of a cocaine,
for which he was sentenced to seven years in prison. The
sentence for that 1989 Alabama conviction has long since
expired. But Harrison says he is still “in
custody” under that conviction because it was used to
enhance the federal sentence he is serving. The Respondents
argue that Harrison is no longer in custody under the 1989
Alabama conviction and that, in any event, his attack on that
conviction is time-barred under AEDPA's one-year
limitation period, 28 U.S.C. § 2244(d). For the reasons
that follow, the Magistrate Judge finds that Harrison's
petition should be denied without an evidentiary hearing.
“In Custody” Requirement, Maleng, and
the Lackawanna/Daniels Exception
district courts have jurisdiction to entertain § 2254
petitions only from persons “in custody in
violation of the Constitution or laws or treaties of the
United States.” 28 U.S.C. § 2254(a) (emphasis
added); see 28 U.S.C. § 2241(c)(3); Means
v. Alabama, 209 F.3d 1241, 1242 (11th Cir. 2000). The
Supreme Court in Maleng v. Cook, 490 U.S. 488
(1989), stated that this “in custody” requirement
means “the habeas petitioner [must] be ‘in
custody' under the conviction or sentence under attack at
the time his petition is filed.” 490 U.S. at 490-91.
And where a habeas petitioner's sentence has expired, he
does not meet the “in custody” requirement.
Id. at 491. However, the Court in Maleng
recognized that where a § 2254 petition may be read as
asserting a challenge to a present sentence that was enhanced
by an allegedly invalid prior conviction, a petitioner may
satisfy the “in custody” requirement for federal
habeas jurisdiction. Id. at 493-94.
maintains that his 1989 Alabama conviction was used to
enhance the federal sentence he is currently serving. He
presents no evidence that this is true. For the sake of
argument, however, this court assumes Harrison is correct and
that his current federal sentence was enhanced by his 1989
Alabama conviction-and, therefore, for purposes of habeas
law, Harrison is “in custody” because of his
expired 1989 Alabama conviction.
mere fact that Harrison's expired conviction was used to
enhance his current sentence does not, standing alone, allow
him to challenge his prior conviction. Under the Supreme
Court's holdings in Lackawanna County Dist. Att'y
v. Coss, 532 U.S. 394 (2001), and Daniels v. United
States, 532 U.S. 374 (2001), an expired prior conviction
used to enhance a current sentence may be attacked only when
the prior conviction was obtained in proceedings where the
petitioner lacked counsel in violation of the Sixth
Amendment, as set forth in Gideon v. Wainwright, 372
U.S. 335 (1963). Lackawanna, 532 U.S at 404-05;
Daniels, 532 U.S. at 382- 84. See Hubbard v.
Haley, 317 F.3d 1245, 1256 n.20 (11th Cir. 2003).
Moreover, a petitioner seeking relief under this exception
must also satisfy the procedural prerequisites-for example,
AEDPA's statute of limitations-for § 2254 relief.
See Lackawanna, 532 U.S at 404.
materials before this court reflect that Harrison was
represented by counsel during the state court proceedings
resulting in his 1989 Alabama conviction, and Harrison
acknowledges that he had counsel in those proceedings.
See Doc. # 1 at 12; Doc. # 7-6 at 7 & 23-24;
Doc. # 11-1 at 1, 4 & 8-9; Doc. # 12 at 7 & 10-12.
Because Harrison was represented by counsel in connection
with his 1989 Alabama conviction, he is precluded from
seeking relief through his § 2254 petition. See
Lackawanna 532 U.S. at 406.
AEDPA's Limitation Period
attack on his 1989 Alabama conviction is also clearly
time-barred under the one-year limitation period applicable
to habeas actions, as set forth in 28 U.S.C. § 2244(d)
of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). A review of the materials submitted by the
Respondents reveals that Harrison's 1989 Alabama
conviction became final in 1990,  before the April 24, 1996
enactment of AEDPA. Therefore, absent tolling, Harrison had
until April 24, 1997-one year after AEDPA's effective
date-to file a timely § 2254 petition challenging the
conviction. See Wilcox v. Florida Department of
Corrections, 158 F.3d 1209, 1211 (11th Cir. 1998).
Harrison filed a petition for post-conviction relief under
Rule 32 of the Alabama Rules of Criminal Procedure on April
15, 2003-well after the expiration of AEDPA's limitation
period in April 1997. See Doc. # 7-6 There is no
evidence that Harrison filed a Rule 32 petition prior to the
one he filed in April 2003. Therefore, Harrison cannot
benefit from tolling under 28 U.S.C. § 2244(d)(2)
(AEDPA's limitation period is tolled under §
2244(d)(2) during the time that a “properly
filed” state post-conviction petition is pending).
See Moore v. Crosby, 321 F.3d 1377, 1381 (11th Cir.
2003) (“While a ‘properly filed' application
for post conviction relief tolls the statute of limitations,
it does not reset or restart the statute of limitations once
the limitations period has expired.”). There is also no
indication that any of the statutory tolling provisions of 28
U.S.C. § 2244(d)(1)(B)- (D) or principles of equitable
tolling apply in Harrison's case so that AEDPA's
limitation period might be deemed to have expired later than
April 24, 1997. Harrison does not carry his burden of showing
that some extraordinary circumstance stood in his way and
prevented timely filing of his petition and that he pursued
his rights diligently regarding his challenge to his 1989
Alabama conviction. See Holland v. Florida, 560 U.S.
631, 649 (2010).
§ 2254 petition was filed on January 14, 2017-almost 20
years too late under AEDPA's limitation period to
challenge his 1989 Alabama conviction. For this reason, and
because (as discussed above) Harrison had counsel in those
state court proceedings, Harrison cannot attack his 1989
it is the RECOMMENDATION of the Magistrate Judge that the
petition for writ habeas corpus under 28 U.S.C. § 2254