Howard v. WardenHoward v. Warden
- Reporters:
- , ,
- Before:
- Martin, Anderson, Federico A. Moreno
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 viоlation of the Constitution or laws or treaties of the United States. See
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 reinstat
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, 227 Ga.App. 5, 488 S.E.2d 489, 490 (1997). At that trial, the state introduced evidence of the 1995 burglary as similar-transaction evidence. Id. Thеre is 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
II.
The question of whether a person is “in custody” within the meaning of
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.‘” Cook, 490 U.S. at 490, 109 S.Ct. at 1925 (quoting
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., 854 F.2d 401, 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 cоncept of ongoing control, restraint, or responsibility by the custodian.” Samirah v. O‘Connell, 335 F.3d 545, 549 (7th Cir.2003); see also Cook, 490 U.S. at 492, 109 S.Ct. at 1926 (“While we have very liberally construed the ‘in custody’ requirement for purposes of federal habeas, we have never extended it to the situation
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.” Cook, 490 U.S. at 490-91, 109 S.Ct. at 1925; see also Diaz, 683 F.3d at 1264 (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 Cook, 490 U.S. at 490-91, 109 S.Ct. at 1925.
Also, the mere fact that evidence of the 1995 burglаry 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 еxpired conviction in situations where the conviction is used to enhance a later sentence, Means v. Alabama, 209 F.3d 1241, 1242 (11th Cir.2000) (per curiam), there is no evidence herе 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, 104 F.3d 325, 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-transaсtion evidence for his 1997 conviction, but the facts that led to that indictment. See Howard, 488 S.E.2d at 490 (describing the similar transaction evidence as the testimony of the victim of the 1995 burglаry). This evidence could have been introduced even if Mr. Howard had never been indicted. See Palmer v. State, 271 Ga. 234, 517 S.E.2d 502, 507 (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 Stacey, 854 F.2d at 403. By definition, the indictment is not active, see
In dismissing Mr. Howard‘s petition, the District Court relied on our unpublished opinion in Daker v. Baker, 263 Fed.Appx. 809 (11th Cir.2008) (per curiam), for the propositiоn 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 prece
In Braden v. 30th Judicial Circuit Court of Ky., 410 U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (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. Id. at 486, 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.” Braden, 410 U.S. at 489 n. 4, 93 S.Ct. at 1126 n. 4. This brief discussion in Braden is consistent with the Supreme Court‘s recognition of the many other ways in whiсh a state may restrain a person‘s liberty. See, e.g., Lydon, 466 U.S. at 301, 104 S.Ct. at 1809; Hensley, 411 U.S. at 351, 93 S.Ct. at 1575; Jones, 371 U.S. at 243, 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 Jones, 371 U.S. at 240, 83 S.Ct. at 376, he could have satisfied the requirements of
IV.
The Georgia dead-docketed indictment does not, by itself, render Mr. Howard “in custody” for the purposes of
AFFIRMED.