United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
CHARLES S. COODY, UNITED STATES MAGISTRATE JUDGE
Clayton Thomason (“Thomason”) filed this pro
se petition for writ of habeas corpus under 28 U.S.C.
§ 2254 on March 4, 2019. Doc. # 1. Thomason attacks
his Elmore County, Alabama misdemeanor conviction for failure
to obtain a homebuilder's license, for which he received
a 10-day suspended sentence and was placed on 12 months of
unsupervised probation. For the reasons that follow, the
court finds that Thomason is entitled to no relief.
RELEVANT STATE COURT PROCEEDINGS
January 20, 2015, Thomason was convicted in the Elmore County
District Court for failure to obtain a homebuilder's
license in violation of § 34-14A-14, Ala. Code 1975, a
misdemeanor. Doc. # 12-1 at 1. The court imposed a 10-day
suspended sentence and placed Thomason on 12 months'
unsupervised probation. Id. Pursuant to §
12-12-70(b), Ala. Code 1975, Thomason appealed to the Elmore
County Circuit Court for a trial de novo.
See § 12-12-71, Ala. Code 1975. Doc. # 12-1 at
2; Doc. # 12-4 at 1.
the pendency of his appeal to the state circuit court,
Thomason attempted to appeal his conviction to the Alabama
Court of Criminal Appeals. Doc. # 12-4. The Alabama Court of
Criminal Appeals dismissed the appeal on March 10, 2016,
explaining that “jurisdiction of one case cannot be in
two courts at the same time” and that jurisdiction of
Thomason's case was in the Elmore County Circuit Court.
Doc. # 12-5 at 1.
September 19, 2016, when Thomason failed to appear for the
trial de novo, the Elmore County Circuit Court
dismissed his appeal and remanded the case to the district
court to enforce his sentence. See Doc. # 12-2 at 6;
Doc. # 12-3; Doc. # 12-7 at 1. The circuit court noted on its
case action summary that Thomason's sentence was to begin
on September 19, 2016. Doc. # 12-2 at 6. Thomason attempted
to appeal the circuit court's order of dismissal to the
Alabama Court of Criminal Appeals, but the appeal was
dismissed on grounds that the circuit court's order was
unappealable. Doc. # 12-7.
11, 2017, Thomason filed a petition in the district court
collaterally attacking his conviction under Rule 32 of the
Alabama Rules of Criminal Procedure. See Doc. # 12-8
at 1. The district court denied Thomason's Rule 32
petition on July 11, 2017. Doc. # 12-8 at 1. Thomason did not
appeal that dismissal, but on July 14, 2017, he filed in the
Alabama Court of Criminal Appeals what that court construed
as a petition for writ of mandamus. Doc. # 12-9. The Alabama
Court of Criminal Appeals transferred the mandamus petition
to the Elmore County Circuit Court for disposition. Docs. #
12-9 & 12- 10. The circuit court denied the mandamus
petition on October 3, 2017. Docs. # 12-11 & 12-12.
Thomason appealed to the Alabama Court of Criminal Appeals,
which dismissed the appeal on November 28, 2017, because
Thomason failed to pay the requisite filing fee. Doc. #
12-13. Thomason petitioned the Alabama Supreme Court for
review of the Alabama Court of Criminal Appeals' ruling,
and the petition for certiorari was stricken on February 27,
2018, because it was untimely filed. Docs. # 12-13 &
THOMASON'S § 2254 PETITION
March 4, 2019, Thomason filed this § 2254 petition for
habeas corpus relief challenging his Elmore County District
Court conviction. His petition presents claims that (1) the
district court did not have jurisdiction to convict or
sentence him because he was not appointed an attorney; (2)
his double jeopardy rights were violated because he received
multiple convictions for the same crime in the same
jurisdiction; (3) his arrest was illegal because he could not
seek administrative relief prior to being charged criminally;
and (4) the charging instrument upon which he was convicted
was based on a forged document, which amounted to
“fraud on the court.” Doc. # 1 at 5-24.
“In Custody” Requirement
district courts have jurisdiction to entertain § 2254
petitions only from a person “in custody
pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C.
§ 2254(a) (emphasis added); see, e.g., 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. A
petitioner is considered “in custody” for
purposes of habeas jurisdiction while he is on probation or
parole. See id. at 491. Where a habeas
petitioner's sentence has expired, he does not meet the
“in custody” requirement. Id.
noted above, when Thomason was convicted in the Elmore County
District Court, that court imposed a 10-day suspended
sentence and placed Thomason on 12 months' unsupervised
probation. Thomason appealed to the Elmore County Circuit
Court for a trial de novo, but that appeal was
dismissed on September 19, 2016, when Thomason failed to
appear. In dismissing the appeal, the circuit court remanded
the case to the district court to enforce Thomason's
sentence, noting that Thomason's sentence was to begin on
September 19, 2016. See Doc. # 12-2 at 6; Doc. #
12-3; Doc. # 12-7 at 1. Therefore, Thomason's
unsupervised probation would have ended 12 months later, on
approximately September 19, 2017. Thomason filed his §
2254 petition on March 4, 2019. Because his sentence,