Case: 14-15298   Date Filed: 07/09/2015   Page: 1 of 3


                                                     [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 14-15298
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 4:13-cv-01777-SLB-TMP



ARTHUR BRENNAN MALLOY,

                                                          Petitioner-Appellant,

                                versus

UNITED STATES OF AMERICA,
BOARD FOR CORRECTION OF NAVAL RECORDS,

                                                      Respondents-Appellees.

                      ________________________

               Appeal from the United States District Court
                  for the Northern District of Alabama
                      ________________________



                              (July 9, 2015)

Before MARCUS, WILLIAM PRYOR and BLACK, Circuit Judges.

PER CURIAM:
              Case: 14-15298     Date Filed: 07/09/2015    Page: 2 of 3


      Arthur Malloy, an Alabama prisoner proceeding pro se, appeals the district

court’s dismissal of his 28 U.S.C. § 2241 habeas corpus petition related to his other

than honorable discharge from the military in 1965. Malloy asserts the district

court erred in dismissing his § 2241 petition for lack of subject matter jurisdiction

because he did not meet the “in custody” definition of § 2241.

      We review de novo a district court’s dismissal of a habeas petition for lack

of jurisdiction. Taylor v. United States, 

, 1327 (11th Cir. 2005). To

bring a federal habeas action, a petitioner must be “in custody in violation of the

Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The

Supreme Court has interpreted § 2241 as requiring that a habeas petitioner be “in

custody” under the conviction or sentence that he seeks to attack at the time when

his petition is filed. Carafas v. LaVallee, 

, 238 (1968). The Supreme

Court has also recognized habeas actions brought pursuant to § 2241 may be

appropriate where “members of the armed services . . . have been unlawfully

detained, restrained, or confined” by the military. Schlanger v. Seamans, 

, 489 (1971). Although a petitioner can challenge his other than honorable

discharge from the military in district court and seek declaratory judgment, § 2241

is not the proper vehicle for bringing such a claim. See Harmon v. Brucker, 

, 580-83 (1958) (finding the district court had jurisdiction to review

petitioners’ actions seeking declaratory judgments that the Secretary of Army’s


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issuance of other than honorable discharge certificates were void and in excess of

his powers).

      The district court did not err in dismissing Malloy’s claim for lack of subject

matter jurisdiction. Malloy is not challenging his conviction or sentence related to

his confinement in Alabama state prison, and he is not detained, restrained, or

confined by the military. Thus, he does not meet the “in custody” definition of

§ 2241. Accordingly, we affirm.

      AFFIRMED.




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