Case: 13-12831       Date Filed: 01/09/2015       Page: 1 of 8


                                                                                 [PUBLISH]



                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                              ________________________

                                     No. 13-12831
                               ________________________

                      D.C. Docket No. 4:13-cv-00180-CDL-MSH


RODERICK HOWARD,

                                                                        Petitioner-Appellant,

                                            versus

WARDEN,

                                                                       Respondent-Appellee.

                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Georgia
                            ________________________

                                      (January 9, 2015)

Before MARTIN and ANDERSON, Circuit Judges, and MORENO, * District
Judge.

MARTIN, Circuit Judge:

       *
          Honorable Federico A. Moreno, United States District Judge for the Southern District of
Florida, sitting by designation.
              Case: 13-12831     Date Filed: 01/09/2015   Page: 2 of 8


      Roderick Howard appeals the District Court’s dismissal of his pre-trial

habeas corpus petition challenging the constitutionality of a dead-docketed

indictment that has been pending for approximately nineteen years. The District

Court held that it did not have jurisdiction to consider Mr. Howard’s petition

because he was not “in custody” in violation of the Constitution or laws or treaties

of the United States. See 28 U.S.C. § 2241(c)(3). After careful consideration, we

agree that a dead-docketed indictment, without more, does not constitute custody

and affirm.

                                         I.

      In 1995, a Muscogee County, Georgia grand jury indicted Mr. Howard for

burglary. He was never tried or convicted for that offense. Instead, in 1996, the

trial court moved his indictment to the Georgia “dead docket,” where it remains

today. This process of dead-docketing an indictment is one by which “prosecution

is postponed indefinitely but may be reinstated any time at the pleasure of the

court. Placing a case upon the dead docket certainly constitutes neither a dismissal

nor a termination of the prosecution in the accused’s favor.” State v. Creel, 

, 805 (Ga. Ct. App. 1995) (citations and quotation marks omitted).

Only the trial court has the ability to reinstate a dead-docketed indictment. See

O.C.G.A. § 15-6-61(a)(4)(B).




                                          2
               Case: 13-12831     Date Filed: 01/09/2015    Page: 3 of 8


      In 1997, Mr. Howard was tried, convicted, and sentenced to a 20-year term

of imprisonment for a burglary not related to the 1995 indictment. See Howard v.

State, 

, 490 (Ga. Ct. App. 1997). At that trial, the state introduced

evidence of the 1995 burglary as similar-transaction evidence. 

no

evidence that suggests, and Mr. Howard does not argue here, that the sentence for

his 1997 conviction was enhanced as a result of the 1995 indictment.

      On June 7, 2013, while incarcerated for violating the parole conditions on

his 1997 conviction, Mr. Howard filed this 28 U.S.C. § 2241 pre-trial habeas

corpus petition, alleging that the 1995 dead-docketed indictment violates his

constitutional speedy trial and due process rights. The District Court dismissed

Mr. Howard’s petition without prejudice, and this appeal followed.

                                           II.

      The question of whether a person is “in custody” within the meaning of 28

U.S.C. § 2241(c)(3) is one of subject-matter jurisdiction. Maleng v. Cook, 

, 490, 

, 1925 (1989) (per curiam). We review de novo a

district court’s dismissal for lack of jurisdiction. Diaz v. Fla. Fourth Judicial

Circuit ex rel. Duval Cnty., 

, 1263 (11th Cir. 2012).

      Federal courts have jurisdiction to entertain habeas corpus petitions “only

from persons who are ‘in custody in violation of the Constitution or laws or treaties

of the United States.’” 

, 109 S. Ct. at 1925 (quoting 28


                                           3
               Case: 13-12831      Date Filed: 01/09/2015    Page: 4 of 8


U.S.C. § 2241(c)(3)). We have construed this requirement “very liberally,” 

(quotation omitted), and it is by now well-settled that the “use of

habeas corpus [is] not . . . restricted to situations in which the applicant is in actual,

physical custody,” Jones v. Cunningham, 

, 239, 

, 375

(1963). Instead, petitioners need only show that they are subject to a significant

restraint on their liberty that is not shared by the general public. 

83

S. Ct. at 375–77. For example, the Supreme Court has extended habeas review to

petitioners released on parole, 

83 S. Ct. at 377, released on their own

recognizance pending execution of a sentence, Hensley v. Mun. Court, 

, 351, 

, 1575 (1973), and free on bail, Lefkowitz v. Newsome,

, 291 & n.8, 

, 891 & n.8 (1975).

      Even in light of this broad interpretation given to the phrase “in custody,”

the term still requires that the state exercise some control over the petitioner. See

Stacey v. Warden, Apalachee Corr. Inst., 

, 403 (11th Cir. 1988) (per

curiam). As the Seventh Circuit has explained, “[a]lthough the word ‘custody’ is

elastic, all definitions of it incorporate some concept of ongoing control, restraint,

or responsibility by the custodian.” Samirah v. O’Connell, 

, 549 (7th

Cir. 2003); see also 

, 109 S. Ct. at 1926 (“While we have

very liberally construed the ‘in custody’ requirement for purposes of federal




                                            4
               Case: 13-12831      Date Filed: 01/09/2015   Page: 5 of 8


habeas, we have never extended it to the situation where a habeas petitioner suffers

no present restraint from a conviction.”).

        Section 2241 also requires a close relationship between the state’s custody

and the alleged constitutional violation. Specifically, a person must be in custody

“under the conviction or sentence under attack at the time his petition is filed.”

–91, 109 S. Ct. at 1925; see also 

(stating that the petitioner must be “in custody pursuant to the state judgment that

is the subject of collateral attack”).

                                          III.

        To begin, the fact that Mr. Howard was incarcerated for violating the parole

conditions on his 1997 conviction does not necessarily give us jurisdiction to

review the 1995 dead-docketed indictment. Because his petition challenges only

the 1995 dead-docketed indictment as unconstitutional, and not the 1997

conviction, Mr. Howard must be in custody under the 1995 indictment in order to

satisfy Section 2241’s requirements. See 

–91, 109 S. Ct. at

1925.

        Also, the mere fact that evidence of the 1995 burglary was introduced at his

1997 trial does not render Mr. Howard in custody under the 1995 indictment.

Although we have recognized that a person remains in custody even under a fully

expired conviction in situations where the conviction is used to enhance a later


                                             5
              Case: 13-12831     Date Filed: 01/09/2015    Page: 6 of 8


sentence, Means v. Alabama, 

, 1242 (11th Cir. 2000) (per curiam),

there is no evidence here that the dead-docketed indictment enhanced Mr.

Howard’s 1997 sentence. Indeed, we are not aware of any other similarly direct

relationship between the 1995 indictment and his current custody. See Van Zant v.

Fla. Parole Comm’n, 

, 328 (11th Cir. 1997) (per curiam) (rejecting

argument that petitioner was in custody where relationship between alleged

constitutional violation and custody was too “speculative and remote”). And

contrary to Mr. Howard’s argument, it was not the 1995 indictment that served as

similar-transaction evidence for his 1997 conviction, but the facts that led to that

indictment. See 

(describing the similar transaction

evidence as the testimony of the victim of the 1995 burglary). This evidence could

have been introduced even if Mr. Howard had never been indicted. See Palmer v.

State, 

, 507 (Ga. 1999).

      Neither is Mr. Howard in custody under the 1995 dead-docketed indictment

itself. Nothing in the record evidences that the state is exercising ongoing control

over Mr. Howard based on that indictment. See 

. By

definition, the indictment is not active, see O.C.G.A. § 15-6-61(a)(4)(B), and

imposes no present restraints on Mr. Howard’s liberty. For instance, it does not

currently subject Mr. Howard to any reporting requirements, or limit his ability to

work, travel, or reside where he pleases. Cf. Justices of Boston Mun. Court v.


                                          6
               Case: 13-12831     Date Filed: 01/09/2015    Page: 7 of 8


Lydon, 

, 301, 

, 1809 (1984) (holding that petitioner

was in custody where he was required to report for trial and prohibited from

“depart[ing] without leave”); 

, 

, 377

(holding that parolee was in custody where he was “required to obtain the

permission of his parole officer to leave the community, to change residence, or to

own or operate a motor vehicle”).

      In dismissing Mr. Howard’s petition, the District Court relied on our

unpublished opinion in Daker v. Baker, 263 F. App’x 809 (11th Cir. 2008) (per

curiam), for the proposition that Mr. Howard was not in custody because the state

had not issued a detainer warrant. Because it is an unpublished decision, Daker is

not binding precedent. See 11th Cir. R. 36-2. In any event, a detainer is not the

only way that Mr. Howard could have shown that he was in custody.

      In Braden v. 30th Judicial Circuit Court of Ky., 

, 

(1973), the Supreme Court considered the pre-trial habeas petition of an Alabama

prisoner who alleged that a three-year-old Kentucky indictment accompanied by an

interstate detainer warrant violated his right to a speedy trial. 

93 S. Ct.

at 1125. Although it held that the detainer was sufficient to show custody, the

Supreme Court expressly left open the question of “whether, if no detainer had

been issued against him, petitioner would be sufficiently ‘in custody’ to attack the

Kentucky indictment.” 

n.4. This


                                           7
              Case: 13-12831     Date Filed: 01/09/2015    Page: 8 of 8


brief discussion in Braden is consistent with the Supreme Court’s recognition of

the many other ways in which a state may restrain a person’s liberty. See, e.g.,

, 104 S. Ct. at 1809; 

, 93 S. Ct. at

1575; 

, 83 S. Ct. at 377.

      Based on this, if Mr. Howard had shown that he is subject to some other type

of restraint that is not shared by the general public, see 

, 83

S. Ct. at 376, he could have satisfied the requirements of 28 U.S.C. § 2241(c)(3)

even in the absence of a detainer warrant. He has shown no such restraint here.

                                         IV.

      The Georgia dead-docketed indictment does not, by itself, render Mr.

Howard “in custody” for the purposes of 28 U.S.C. § 2241. We do not have

jurisdiction to consider his claims on habeas review.

      AFFIRMED.




                                           8