Jones v. Secretary, Department of Corrections (Polk County)

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

CHRISTOPHER JOHN JONES,

Petitioner,

v. Case No. 8:22-cv-417-WFJ-MRM

SECRETARY, DEPARTMENT OF CORRECTIONS,

Respondent. ____________________________/

O R D E R

Mr. Jones, a Florida prisoner, initiated this action by filing a petition for the writ of habeas corpus (Doc. 1). He filed an amended petition (Doc. 6) that the Respondent moves to dismiss for lack of jurisdiction (Doc. 10). Mr. Jones opposes the motion (Doc. 12). Upon consideration, the motion to dismiss will be denied. For a court to have jurisdiction over a habeas petition, the petitioner must 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). Respondent argues this Court is without jurisdiction to consider the amended petition because Petitioner is not in custody under the convictions he challenges, four counts of contracting without a license, since Mr. Jones served his sentences for those convictions before filing his petition. Respondent alleges Mr. Jones was convicted of numerous offenses in Case No. 53-2011-000961-01 and is in custody under convictions in that case other than 1 the four contracting without a license convictions. The Court disagrees with Respondent’s argument. The amended petition identifies all convictions in the case (Doc. 6, docket p. 1), and Mr. Jones requests the Court “vacate all charges against” him (Id., docket p. 15) (emphasis added). Moreover, in his reply, Mr. Jones asks the Court to “vacate Case #CF-00961 in its entirety...” (Doc. 12, docket p. 3) (emphasis added). Because Mr. Jones’ petition attacks the felony convictions for which he is in custody, the Court has jurisdiction over the petition. ! Accordingly, Respondent’s Motion to Dismiss Petition for Lack of Jurisdiction (Doc. 10) is DENIED. Respondent must respond to the petition within sixty (60) days. ORDERED in Tampa, Florida, on July 15, 2022.

WILLIAM F. ca UNITED STATES DISTRICT JUDGE SA: sfc Copies to: Counsel of Record Petitioner, pro se

1 In finding it has jurisdiction, the Court expresses no opinion on the merits of Mr. Jones’ argument that all convictions must be vacated because he had a valid contractor’s license at the time of the offenses.