John M. Krott v. Walton CI Warden

• Court: Court of Appeals for the Eleventh Circuit
• Decided: June 20, 2018
• Docket: 17-13674
• Status: Unpublished

Opinion

Case: 17-13674 Date Filed: 06/20/2018 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13674 Non-Argument Calendar ________________________

D.C. Docket No. 0:17-cv-61165-WPD

JOHN M. KROTT,

Petitioner-Appellant,

versus

WALTON CI WARDEN, ATTORNEY GENERAL, STATE OF FLORIDA,

Respondents-Appellees.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(June 20, 2018)

Before ED CARNES, Chief Judge, WILSON, and JORDAN, Circuit Judges. PER CURIAM: Case: 17-13674 Date Filed: 06/20/2018 Page: 2 of 4

John Krott, a Florida prisoner proceeding pro se, appeals the district court’s

dismissal of his 28 U.S.C. § 2254 petition for lack of jurisdiction.

Krott pleaded guilty on June 30, 2006, to driving with a suspended license

and was sentenced that day to time served. He is currently serving a 30-year

sentence on a robbery conviction, which was imposed on September 7, 2007. In

his § 2254 petition, Krott challenges his 2006 conviction, contending that law

enforcement fabricated a warrant to arrest him for driving with a suspended

license, and that without the warrant he could not have been arrested for the

robbery offense. The court dismissed his petition for lack of jurisdiction on the

ground that Krott is not in custody under the 2006 conviction because that sentence

expired. This is his appeal.

The district court did not err in dismissing Krott’s petition for lack of

jurisdiction. Federal courts have jurisdiction to consider a habeas petition from a

petitioner “in custody pursuant to the judgment of a State court only on the ground

that he is in custody in violation of the Constitution or laws or treaties of the

United States.” 28 U.S.C. § 2254(a). “A federal habeas petitioner must be ‘in

custody’ under the conviction or sentence under attack at the time his petition is

filed.” Diaz v. State of Fla. Fourth Judicial Circuit, 683 F.3d 1261, 1264 (11th Cir.

2012) (quoting Maleng v. Cook, 490 U.S. 488, 490–91, 109 S. Ct. 1923, 1925

(1989)). Although we broadly construe the “in custody” requirement, a petitioner

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cannot satisfy that requirement if he “suffers no present restraint from the

conviction being challenged.” Id. (quotation marks omitted).

Krott concedes that he challenges only his conviction for driving with a

suspended license. That sentence expired on June 30, 2006, which means he is no

longer “in custody” under that sentence. See Maleng, 490 U.S. at 492, 109 S. Ct.

at 1926 (concluding that a petitioner whose sentence “has completely expired” is

no longer “in custody” under that sentence). He argues that he can challenge that

conviction because it led to his robbery conviction, but the collateral consequences

of a conviction are not enough to satisfy the “in custody” requirement. See id.

(“[O]nce the sentence imposed for a conviction has completely expired, the

collateral consequences of that conviction are not themselves sufficient to render

an individual ‘in custody’ for the purposes of a habeas attack upon it.”). And he

cannot satisfy the two exceptions to the “in custody” requirement because his

robbery sentence was not enhanced by his 2006 conviction and the two sentences

are not consecutive. See Van Zant v. Fla. Parole Comm’n, 104 F.3d 325, 327

(11th Cir. 1997) (“[A] petitioner may challenge an expired conviction only if, at

the time of the filing of the petition, (1) the petitioner is incarcerated under a

current sentence that (2) has been enhanced by the expired conviction.”); Diaz, 683

F.3d at 1264 (“[A] petitioner in state custody may challenge the first of multiple,

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consecutive sentences imposed[,] even where the first sentence has already been

served . . . .”) (citing Garlotte v. Fordice, 515 U.S. 39, 115 S. Ct. 1948 (1995)).

AFFIRMED.