HUNTER

v.

SECRETARY, DEPARTMENT OF CORRECTIONS (LEE COUNTY)

This matter is before the Court on Petitioner Willie Patrick Hunter’s (“Hunter’s” or “Petitioner’s”) 28 U.S.C. § 2254 petition for writ of habeas corpus. (Doc. 1). Hunter, who is incarcerated within the Florida Department of Corrections, challenges his state court convictions in case numbers 88CF01544, 88CF01545, 89CF13044, and 91CF01608. (Id. at 1). The sentences on these cases are fully expired. However, Hunter is currently serving concurrent sentences of thirty years and life in prison as a habitual felony offender on later convictions for burglary and grand theft. (Doc. 1 at 17). Respondent filed a limited response to Hunter’s petition, asking the Court to dismiss it as time-barred. (Doc. 9 at 5). However, upon careful review of the petition, response, and exhibits, the Court concludes that it will not consider the petition’s timeliness because it must be dismissed without prejudice for lack of jurisdiction. See Cadet v. Bulger, 377 F. 3d 1173, 1179 (11th Cir. 2004) (recognizing that federal courts are “obligated to inquire into subject-matter jurisdiction sua sponte whenever it may be lacking”). Namely, the Court finds that Hunter is no longer in custody on the convictions in case numbers 88CF01544, 88CF01545, 89CF13044, and 91CF01608. And, to the extent he challenges the sentences imposed in his later burglary and grand theft convictions, the petition is successive.

I. Background

On February³, 1989, Hunter pleaded guilty in Lee County case numbers 88CF01544 and 88CF01545 to two counts of second degree robbery and one count of resisting or obstructing an officer. (Doc. 1 at 1; Doc. 9-2 at 2, 6). The trial court sentenced Hunter to a total term of four and a half years in prison. (Doc. 1 at 1; Doc. 9-2 at 3–4, 7–9). On October¹, 1989, Hunter pleaded guilty in Pinellas County case number 89CF13044 to one count of escape, and the trial court sentenced him to one year and one day in prison. (Doc. 1 at 1; Doc. 9-2 at 11, 13). On October², 1991, Hunter pleaded guilty to two counts of uttering a forged instrument in Lee County case number 91CF01608, and the trial court sentenced him to concurrent terms of 18 months in prison. (Doc. 1 at 1; Doc. 9-2 at 16–21). Hunter did not appeal any of the convictions or seek other postconviction relief in state court. (Doc. 1 at 2, 3, 5). A review of the Department of Corrections’ website confirms that Hunter is no longer incarcerated on any of these crimes. (Doc. 1 at 5).1

Hunter mailed his habeas petition to the Clerk’s Office on September 20, 2019. (Doc. 1 at 19).

II. Discussion

Hunter argues that he was “legally innocent” of the crimes to which he pleaded guilty in case numbers 88CF01544, 88CF01545, 89CF13044, and 91CF01608 (collectively, “first convictions”) because there was a viable defense of voluntary intoxication that his attorney failed to recognize. (Doc. 1 at 15). Therefore, he asserts, his defense counsel provided ineffective assistance by advising him to enter guilty pleas. (Id.) A. Hunter is no longer “in custody” under the sentences imposed in the first convictions. To file a cognizable 28 U.S.C. § 2254 petition, a petitioner must be “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The Supreme Court has interpreted this language “as requiring that the habeas petitioner be ‘in custody’ under the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989). If the petitioner does not satisfy

2241(c)(3)’s “in custody” requirement. Id. at 402. Applying the reasoning in Lackawanna, the Court will liberally construe Hunter’s petition as attacking the sentencing enhancements applied in his second convictions so that he satisfies § 2241(c)(3)’s “in custody” requirement.³ However, even under

“once a state conviction is no longer open to direct or collateral attack in its own right . . . the defendant generally may not challenge the enhanced sentenced through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained.” Id. at 403–04. This Court need not consider the applicability of (or exceptions to) this rule here because, as explained in text infra, to the extent he challenges his second convictions, Hunter’s petition is successive. 4 Hunter did not challenge case number 92-923 in his 1999 petition. This conviction was for grand theft and Hunter was sentenced to five years in prison on July 29, 1994. See FDOC Offender Network/114956. This conviction, standing alone, cannot save the instant petition from dismissal as successive because the five-year sentence would have expired before Hunter filed the instant federal habeas petition on September 20, 2019, rendering Hunter not “in custody” when he filed the petition. (Doc. 1 at 18). 5 In his first habeas petition attacking his second convictions, Hunter erroneously assigned case number 92-2067 to actual case number 92-2967. Given that 92-2967 was the last of a sequential list of case numbers (and Petitioner was never convicted under a case number 92-2067), this was clearly a typing error. (See Case²:99-cv-514-RAL at ECF No. 1, p. 3); FDOC Offender Network/114956. 2244(b)(3)(A) (requiring approval from the court of appeals “[b]efore a second or successive application . . . is filed in the district court[.]”). Without leave from the Eleventh Circuit,

“the district court lacks jurisdiction to consider a second or successive habeas petition.” Pavon v. Att’y Gen. Fla., 719 F. App’x 978, 979 (11th Cir. 2018) (citing Farris v. United States, 333 F. 3d 1211, 1216 (11th Cir. 2003)); see also Selden v. Warren, 799 F. App’x 810, 811 (11th Cir. 2020) (affirming the district court’s dismissal for lack of jurisdiction because the habeas petition was successive). The Court recognizes that the term “second or successive” is not self-defining and that not all habeas applications filed after the first are per se successive. Panetti v. Quarterman, 551 U.S. 930, 943-44 (2007); Stewart v. United States, 646 F. 3d 856, 860 (11th Cir. 2011). However, Hunter asserts no facts or claims that fall within the “small subset of unavailable claims that must not be categorized as successive.” Stewart, 646 F. 3d at 863. Therefore, the petition must be dismissed without prejudice for lack of jurisdiction.

III. Conclusion

To the extent Hunter challenges only his first convictions, the Court cannot consider this petition because his sentences on those convictions were fully expired when he filed the petition, and as a result, he was not “in custody” under § 2241(c)(3). Therefore, the petition must be dismissed without prejudice for lack of jurisdiction. Even if the Court liberally construes the petition as attacking the sentencing enhancements in Hunter’s second convictions, the case must still be dismissed without prejudice to allow Hunter an opportunity to first seek authorization from the Eleventh Circuit before lodging a second challenge to his current incarceration. See Gill v. Warden, 801 F. App’x 676, 680–81 (11th Cir. 2020) (affirming the district court’s dismissal of Gill’s petition as successive when he challenged a sentence that was enhanced based on an earlier conviction with a fully expired sentence). Section 2244(b)(2) limits the circumstances under which the appellate court will authorize filing a second or successive habeas corpus petition, and 28 U.S.C. § 2244(d) imposes a time limit on filing a habeas corpus petition. In seeking relief in the Eleventh Circuit, Hunter should consider these provisions. Accordingly, it is now ORDERED: 1. Willie Patrick Hunter’s 28 U.S.C. § 2254 petition for writ of habeas corpus (Doc. 1) is DISMISSED without prejudice for lack of jurisdiction.

2. The Clerk is DIRECTED enter judgment, deny as moot any

pending motions, close this case, and send Hunter an “Application for Leave to File a Second or Successive Habeas Corpus Petition 28 U.S.C. § 2244(b) by a Prisoner in State Custody” form. DONE AND ORDERED in Fort Myers, Florida on March 21, 2022.

VA = Pe

E. STEELE

Sq IOR UNITED STATES DISTRICT JUDGE

SA: FTMP-2 Copies to: Parties of Record Encl: Form