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