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Slip Opinion
N.D. Fla.
Nov 5, 2021
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Background

  • Durfee was convicted by a Navy court-martial in 1998 of forcible sodomy but received no term of imprisonment.
  • Because of the conviction he is required to register on Florida’s sexual-offender registry.
  • In October 2021 Durfee filed a pro se § 2241 habeas petition seeking vacation of the forcible-sodomy conviction based on ineffective assistance of trial and appellate counsel (trial counsel allegedly failed to request a lesser-included instruction; appellate counsel allegedly failed to raise that claim).
  • As an alternative theory, Durfee argued Solorio v. United States was wrongly decided and that O’Callahan v. Parker would have barred court-martial jurisdiction because the conduct occurred off-base in his private residence.
  • Durfee acknowledged he is not in custody and also filed a motion to compel production of the 1998 trial transcript.
  • The magistrate judge recommended dismissing the § 2241 petition without prejudice for lack of subject-matter jurisdiction because Durfee was not in custody and sexual-offender registration is only a collateral consequence; the motion to compel was recommended denied as moot.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Jurisdiction: § 2241 in-custody requirement Registration and collateral consequences place Durfee "in custody" for habeas Durfee admits no imprisonment; registration alone is insufficient to satisfy custody Petition dismissed for lack of subject-matter jurisdiction (not in custody)
Ineffective assistance re: lesser-included instruction Trial counsel failed to request consensual-sodomy instruction; appellate counsel ineffective for not raising it Merits not reached because jurisdictional defect Claim not decided on merits and dismissed without prejudice
Solorio/O'Callahan jurisdictional challenge Solorio should be overruled; under O'Callahan court-martial lacked jurisdiction over off-base conduct Solorio is controlling precedent; court need not and did not resolve question Court declined to reach this issue because petition dismissed for lack of jurisdiction

Key Cases Cited

  • Maleng v. Cook, 490 U.S. 488 (1989) (habeas petitioner must be in custody under the conviction or sentence when petition is filed)
  • Carafas v. LaVallee, 391 U.S. 234 (1968) (same in-custody principle for habeas relief)
  • Virsnieks v. Smith, 521 F.3d 707 (7th Cir. 2008) (sexual-offender registration alone does not create habeas custody)
  • Samak v. Warden, FCC Coleman–Medium, 766 F.3d 1271 (11th Cir. 2014) (habeas relief only where petitioner is in custody in the district)
  • Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d 401 (11th Cir. 1988) (in-custody requirement is jurisdictional)
  • Solorio v. United States, 483 U.S. 435 (1987) (decision upholding court-martial jurisdiction over certain off-base conduct)
  • O'Callahan v. Parker, 395 U.S. 258 (1969) (prior precedent limiting court-martial jurisdiction over certain offenses)
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Case Details

Case Name: DURFEE v. DEPARTMENT OF THE NAVY
Court Name: District Court, N.D. Florida
Date Published: Nov 5, 2021
Citation: 4:21-cv-00426
Docket Number: 4:21-cv-00426
Court Abbreviation: N.D. Fla.
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