United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER SUMMARILY DENYING THE PETITION FOR
WRIT OF HABEAS CORPUS, DECLINING TO ISSUE A CERTIFICATE OF
APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA
MARK A. GOLDSMITH JUDGE
Henry Richardson, currently confined at the Federal
Correctional Institution in Memphis, Tennessee, filed a pro
se petition for a writ of habeas corpus pursuant to 28 U.S.C.
§ 2254 (Dkt. 1), challenging his 1998 convictions for
possession of less than fifty grams of cocaine, Mich. Comp.
Laws § 333.7401(2)(a)(iv); and possession of less than
twenty-five grams of cocaine, Mich. Comp. Laws §
333.7403(a)(5). For the reasons stated below, the Court
summarily denies the petition for a writ of habeas corpus
pled guilty in the Wayne County Circuit Court to possession
with intent to deliver less than fifty grams of cocaine in
Case # 97-00554-01-FH, and to possession of less than
twenty-five grams of cocaine in Case # 97-004958-01-FH. On
October 27, 1998, Petitioner was sentenced to lifetime
probation on the possession with intent to deliver less than
fifty grams of cocaine conviction, and three years'
probation for the possession of cocaine conviction. By his
own admission, Petitioner has been discharged from these
sentences and is no longer in custody for these convictions.
A review of the Wayne County Circuit Court docket sheets
shows that Petitioner was discharged from probation in both
cases on May 26, 2004, after having been found to have
violated the terms of his probation.
to his discharge from probation, Petitioner pleaded guilty in
federal court to (i) possession of more than 50 grams of
cocaine base with intent to distribute in violation of 21
U.S.C. § 841(a)(1), as well as aiding and abetting in
violation of 18 U.S.C. § 2; (ii) possession of more than
500 grams of cocaine with intent to distribute in violation
of 21 U.S.C. § 841(a)(1), as well as aiding and abetting
in violation of 18 U.S.C. § 2; and (iii) possession of a
firearm in furtherance of a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A), as well as aiding
and abetting in violation of 18 U.S.C. § 2. Petitioner
was sentenced to 300 months on the two federal cocaine
charges, and he received a consecutive 60-month sentence on
the firearms charge. See United States v.
Richardson, No. 2:06-CV-20676 (E.D. Mich.).
2015, Petitioner filed a post-conviction motion for relief
from judgment in the state trial court, in which he
challenged his two 1998 state-court convictions. The trial
court denied the motion. People v. Richardson, No.
97-004958-01-FH, 97-00554-01-FH (Wayne Cty.Cir. Ct. July 15,
2015). The Michigan appellate courts denied Petitioner leave
to appeal. People v. Richardson, No. 330551 (Mich.
Ct. App. June 15, 2016), leave denied, 888 N.W.2d 99
seeks a writ of habeas corpus on the following grounds:
i. “The petitioner's guilty plea was based on
illegal sentences rendering the guilty plea involuntary and
the judgment void in violation of due process.”
ii. “Counsel provided ineffective assistance by having
Petitioner agree to illegal sentences in violation of the
Petitioner's Sixth Amendment right to effective
[assistance of] counsel.”
Pet'r Br. at 5, 11.
Court denies the habeas petition because the Court lacks
jurisdiction over the petition, due to the fact that
Petitioner is no longer in custody for his two 1998
language of 28 U.S.C. §§ 2241(c)(3) and 2254(a)
requires that a habeas petitioner be “in custody”
under the conviction or sentence under attack at the time
that a habeas petition is filed in the federal court. See
Maleng v. Cook, 490 U.S. 488, 490-491 (1989). A habeas
petitioner is no longer “in custody, ” for
purposes of a conviction imposed, after the sentence on that
conviction has fully expired. Id. at 492-493;
see also Clemons v. Mendez, 121 F.Supp.2d 1101, 1102
(E.D. Mich. 2000). The “in custody” requirement
is jurisdictional. See Foster v. Booher, 296 F.3d
947, 949 (10th Cir. 2002).
acknowledges that his sentences on his two 1998 drug
convictions have expired, but he seeks to challenge them on
the ground that the convictions have been used to ...