SMITH v. WINGARD, 3:15-cv-00003

Petitioner Kyle Smith challenged the Pennsylvania Board of Probation and Parole’s recalculation of his sentence after parole revocation related to a 2009 conviction for carrying a firearm without a license.
The Board recommitted Smith as a convicted parole violator and ordered him to serve the unexpired maximum (2–4 years) for the firearm offense, with the Board-calculated expiration set at November 17, 2014.
On November 17, 2014 Smith’s firearm sentence expired and he began serving a new 3–6 year sentence for possession with intent to deliver a controlled substance.
Smith filed a federal habeas petition under 28 U.S.C. § 2254 on January 5, 2015, challenging the Board’s recalculation.
Respondents moved to dismiss for lack of jurisdiction on the ground that Smith was not "in custody pursuant to the judgment of a State court" for the sentence he challenged at the time he filed the petition.
The magistrate judge dismissed the petition for lack of jurisdiction and denied a certificate of appealability.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether federal habeas jurisdiction exists when petitioner challenges a state sentence but is not in custody under that sentence at filing	Smith challenged the Board’s recalculation of his firearm sentence and sought habeas relief despite filing after that sentence expired	Respondents argued Smith was not in custody under the challenged judgment when he filed (he was serving a different sentence), so § 2254 jurisdiction is lacking	Petition dismissed for lack of jurisdiction because petitioner was not in custody under the challenged judgment at filing; COA denied

United States ex rel. Dessus v. Commonwealth of Pennsylvania, 452 F.2d 557 (3d Cir. 1971) (custody is the jurisdictional prerequisite for federal habeas relief)
Fay v. Noia, 372 U.S. 391 (1963) (custody/detention is the core jurisdictional requirement for habeas jurisdiction)
Maleng v. Cook, 490 U.S. 488 (1989) (custody requirement is jurisdictional)
Barry v. Bergen County Probation Dep't, 128 F.3d 152 (3d Cir. 1997) (custody is assessed as of the date the habeas petition is filed)
Spencer v. Kemna, 523 U.S. 1 (1998) (petitioner must be in custody at the time the petition is filed to satisfy § 2254)
Slack v. McDaniel, 529 U.S. 473 (2000) (standard for issuing a certificate of appealability when dismissal is on procedural grounds)