CHARLES S. COODY, Magistrate Judge.
This cause is before the court on a 28 U.S.C. § 2254 petition for habeas corpus filed on May 22, 2013. The petitioner, Rudolph Polson ("Polson"), challenges his conviction, pursuant to his guilty plea, for first degree theft of property by deception entered against him by the Circuit Court of Lee County, Alabama. On January 25, 2010, Polson pled guilty to one count of theft by deception and was sentenced to a term of imprisonment of twenty four months. The trial court initially ordered Polson to serve probation contingent on Polson paying restitution and court costs within sixty (60) days of the imposition of probation. (Doc. # 21, Att. 1, Ex. I). On June 3, 2010, the court revoked Polson's probation for his failure to pay restitution and other costs as previously ordered. (Doc. # 17, Ex A1). Polson began serving his two year sentence at that time. Polson did not appeal his guilty plea, sentence or probation revocation. (Doc. # 9, Ex. A).
Pursuant to the orders of this court, the respondents filed an answer and two supplemental answers. See Docs. # 9, 15 & 21. In their answer and supplemental answers, the respondents argue that the instant petition is due to be dismissed for lack of jurisdiction because Polson was not "in custody" at the time he filed his habeas petition. See 28 U.S.C. § 2254(a). See also, Maleng v.Cook, 490 U.S. 488, 490 (1989). Polson admits that he was in the custody of federal immigration authorities when he filed the petition, and he was taken into custody pursuant to a detainer by Immigration and Customs Enforcement upon the completion of his state sentence on May 7, 2011. (Doc. # 1 at 11). Consequently, the respondents assert that Polson was not in custody within the meaning of the habeas statutes with respect to the conviction that he now challenges.
Polson, on the other hand, asserts that he remained "in custody" because he was being detained by federal immigration authorities by virtue of his 2010 conviction. He further argues that he remained in custody because he was suffering collateral consequences, including the threat of deportation proceedings. Finally, relying on a statement on the case action summary sheet that "[u]pon release the Defendant is to report to the Court for a payment plan and review date," Polson argues that he was not "unconditionally released" because he was required to report back to the Circuit Court of Lee County when he was released from prison. According to Polson, the court should liberally construe the habeas statutes to conclude that he was "in custody" at the time he filed this habeas petition.
The federal habeas statutes give the court jurisdiction to "entertain an application for a writ of habeas corpus in behalf of a person
Howard v. Warden, 776 F.3d 772, 775 (11th Cir. 2015)
In his habeas petition, Polson is seeking "to vacate the conviction and sentence imposed by the Circuit Court of Lee County, Alabama on January 25, 2010." (Doc. # 1 at 2). He admits that he completed his state sentence on May 7, 2011 at which time he was "taken into custody by federal immigration authorities." (Id. at 11). Thus, when Polson filed this habeas petition on May 23, 2013, he had completed service of the sentence imposed by the state court and was being held on a federal immigration detainer. See Birotte v. Sec'y for the Dep't of Corrs., 236 F. App'x 577, 577 (11th Cir. 2007) (Petitioner was "not "in custody" with respect to the conviction he was attacking, as he had already served his 30-month sentence.").
Even broadly interpreting the "in custody" requirement, "the term still requires that the state exercise some control over the petitioner." Howard, 776 F.3d at 775. See also Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401, 403 (11th Cir. 1988). Polson was not under "any "present restraint" attributable to his state conviction when he filed the present 2254 petition." See Diaz, 683 F.3d at 1264-65. There is no evidence in the record that, at the time Polson filed this 2254 petition, the state was `exercising ongoing control over [him] based on [his conviction.]" Howard, 776 F3d. at 776. While the court in Maleng acknowledged that a prisoner does not have to be physically confined to be in custody to challenge a conviction, the court has "never held, however, that a habeas petitioner may be "in custody" under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." Maleng, 490 U.S. at 491. Thus, the court concludes that, because Polson's sentence expired on May 11, 2011 when he completed his term of incarceration, at the time he filed this § 2254 petition in May 2013, he was no longer in custody on the conviction that he seeks to challenge, and the court lacks jurisdiction to entertain his claims.
Polson argues that he was in custody because he was suffering and will continue to suffer "continuing injuries" or collateral consequences from his conviction, including the possibility of removal by immigration authorities as well as damage to his reputation, loss of employment opportunities and scrutiny from law enforcement officers. See Doc. # 1 at 11. Maleng makes it crystal clear that "[o]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render the individual `in custody' for the purposes of a habeas attack upon it." 490 U.S. at 492.
In Llovera-Linares v. Florida, 559 F. App'x 949 (11th Cir. 2014), a factually similar case, the Eleventh Circuit recently affirmed a determination that Llovera-Linares was not in custody when he was taken into federal immigration custody after he was released from state custody. While he was awaiting deportation, Llovera-Linares filed a habeas petition seeking to vacate the state conviction that permitted immigration authorities to detain him. The court found that
559 F. App'x at 952. The court concluded that Llovera-Linares did not meet the in custody requirement for habeas relief. Id. See also Birotte, 236 F. App'x at 579 ("the collateral consequences of his prior conviction — the removal order — is insufficient to render him in custody for the purpose of 2254(a)."). For the same reasons, Polson does not meet the "in custody" requirement in this case.
Finally, Polson argues that he was in custody because in the order revoking his probation, he was ordered "to report to the Court for a payment plan and review date." (Doc. # 17, Ex. A1). This order arose from the revocation of his probation for failure to pay restitution. Thus, even if the order to report to the court for development of a payment plan is a significant restraint, it is not a restraint pursuant to his conviction. The mere fact that Polson was still required to pay restitution is insufficient to render him "in custody" for jurisdictional purposes. See Duvallon v. Florida, 691 F.2d 483, 485 (5th Cir. 1982) (requiring petitioner to pay a fine did not equate to being "in custody" for purposes of § 2254). When faced with the question of whether the imposition of special assessment or fine is a sufficient restraint on a petitioner to establish that he is "in custody" for the purpose of habeas relief, the Third Circuit succinctly and persuasively held
United States v. Ross, 801 F.3d 374, 380-81 (3rd Cir. 2015).
Polson cannot claim a right to challenge his 2010 conviction solely on the basis of an order related only to the requirement that he pay restitution. When Polson filed this habeas petition, he was not "claiming a right to be released," and the imposition of restitution and fines "cannot serve as the basis for a [habeas] claim." Id. at 382.
Therefore, the court concludes that the sentence imposed upon Polson for his state conviction expired prior to the filing of this federal habeas petition, and Polson is prevented from challenging that 2010 conviction in this federal habeas proceeding. Based on the foregoing, the court concludes that the petition for writ of habeas corpus is due to be dismissed for lack of subject-matter jurisdiction as the petitioner was not "in custody" on the challenged conviction when he filed the petition. See Maleng, 490 U.S. at 490.
Accordingly, it is the RECOMMENDATION of the Magistrate Judge that the petition for habeas corpus relief be dismissed for want of jurisdiction. It is further
ORDERED that the parties shall file any objections to this Recommendation on or before
Polson contends that his Rule 32 petition was delivered to prison officials on the day he signed it, January 25, 2011. Thus, according to Polson, when he filed his Rule 32 petition, 323 days of the one year limitation period had expired. The petition remained pending in the state courts until April 12, 2013 when the Alabama Supreme Court denied his petition for certiorari and the Alabama Court of Civil Appeals entered a certificate of judgment. (Doc. # 9, Ex. B-J). Thus, on April 12, 2013, Polson had 42 days remaining in the limitation period within which to file his habeas petition. Polson filed his petition on May 22, 2013, two days before the limitation period expired.
The respondents assert that because the Alabama Court of Criminal Appeals determined that Polson filed his Rule 32 petition on January 31, 2011, the limitations period expired on May 18, 2011. However, May 18, 2011 fell on a Saturday so Polson had until May 20, 2013 to file his federal habeas petition. According to the respondents, Polson filed his federal petition on May 22, 2013, two days after the limitation period expired, and is time-barred.
Although the Rule 32 petition does not indicate when it was delivered to prison officials, Alabama follows the inmate "mailbox rule" of Houston v. Lack, 487 U.S. 266 (1988). The law is well settled that, under the "mailbox rule," a pro se inmate's petition is deemed filed the date it is delivered to prison officials for mailing. Houston, supra; Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir. 1999); Garvey v. Vaughn, 93 F.2d 776, 780 (11th Cir. 1993). In this circuit, absent evidence to the contrary, the court assumes that a prisoner delivered a filing to prison officials on the date that he signed it. See United States v. Glover, 686 F.3d 1203, 1205 (11th Cir. 2012). Contrary to the assertion of the respondents, the opinion of the Alabama Court of Civil Appeals does not make a finding regarding the date that the petition was filed; rather, the court merely recites that filing date as January 31, 2011. Thus, without more and applying the mailbox rule, the court assumes that Polson delivered his petition to prison officials on January 25, 2011, and deems that date as the filing date. Polson's petition was timely.
