United States District Court, D. South Carolina, Orangeburg Division
James R. Glisson, Jr., Petitioner,
Warden Dennis Bush, Respondent.
Bryan Harwell United States District Judge
James R. Glisson, Jr., a state prisoner proceeding pro se,
initiated this action by filing a petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See
ECF No. 1. Respondent subsequently filed a motion for summary
judgment. See ECF No. 20. The matter is before the
Court for review of the Report and Recommendation (R & R)
of United States Magistrate Judge Kaymani D.
West. See R & R, ECF No. 33. The
Magistrate Judge recommends that the Court grant
Respondent’s motion for summary judgment and dismiss
Petitioner’s habeas petition for lack of subject matter
jurisdiction. R & R at 1, 10. Petitioner has filed timely
objections to the R & R. See Pet.’s Objs.,
ECF No. 35.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge’s recommendation has no
presumptive weight, and the responsibility to make a final
determination remains with the Court. Mathews v.
Weber, 423 U.S. 261, 270-71 (1976). The Court must
conduct a de novo review of those portions of the R & R
to which specific objections are made, and it may accept,
reject, or modify, in whole or in part, the recommendation of
the Magistrate Judge or recommit the matter with
instructions. 28 U.S.C. § 636(b)(1).
Court must engage in a de novo review of every portion of the
Magistrate Judge’s report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]’s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge’s recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
Magistrate Judge recommends the Court dismiss
Petitioner’s § 2254 petition for lack of subject
matter jurisdiction because he is no longer “in
custody” for the conviction (a 2011 guilty plea
conviction for second-degree burglary) that is the subject of
his petition. See R & R at 8-10. The Magistrate
Judge relies on Petitioner’s state prison records that
indicate he began serving his four-year sentence for the 2011
conviction on December 20, 2010, and that indicate this
sentence expired on April 1, 2013. Id. at 9 (citing
SCDC Prison Records, ECF Nos. 19-2 & 19-3).
presents two primary arguments in his objections to the
Magistrate Judge’s R & R. First, he argues he was
incarcerated at the time he filed his petition and “was
never not incarcerated.” Pet.’s Objs. at 1-2.
individual must be “in custody” to be eligible
for federal habeas corpus relief. See 28 U.S.C.
§ 2254(a); Leonard v. Hammond, 804 F.2d 838,
842 (4th Cir. 1986). Moreover, at the time a habeas
petitioner files his petition in federal court, the
petitioner must be in custody under the conviction or
sentence being challenged. Maleng, 490 U.S. at
490-91. A person who files a habeas petition after he has
fully served his sentence is not in custody for purposes of a
federal district court’s subject matter jurisdiction.
Wilson v. Flaherty, 689 F.3d 332, 339 (4th Cir.
Petitioner is currently incarcerated in the South Carolina
Department of Corrections and thus in the custody of the
State of South Carolina,  he is not “in custody”
for the conviction-the 2011 guilty plea conviction for
second-degree burglary-that is the subject of his
petition. Petitioner’s sentence for his 2011
conviction expired more than two years before he filed his
§ 2254 petition,  and therefore he cannot satisfy the
“in custody” jurisdictional requirement for a
federal habeas case under 28 U.S.C. § 2254. This Court
lacks subject matter jurisdiction over Petitioner’s
habeas action because he is not in custody for the challenged
state court judgment, and the petition warrants dismissal on
this ground. Accordingly, the Court rejects
Petitioner’s first argument.
second argument relates to the Magistrate Judge’s
finding that he cannot challenge his 2011 conviction on the
basis that it was used to enhance the sentences imposed for
his subsequent convictions. See Pet.’s Objs.
at 1; R & R at 10 n.3. As the Magistrate Judge found, and
as the United States Supreme Court has ruled, this Court does
not have subject matter jurisdiction merely because
Petitioner seeks to attack the collateral
consequence-sentence enhancement-of his 2011 conviction.
See Maleng, 490 U.S. at 492 (“The question
presented by this case is whether a habeas petitioner remains
‘in custody’ under a conviction after the
sentence imposed for it has fully expired, merely because of
the possibility that the prior conviction will be used to
enhance the sentences imposed for any subsequent crimes of
which he is convicted. We hold that he does not.”).
Accordingly, the Court rejects Petitioner’s second
certificate of appealability will not issue absent “a
substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). When the district
court denies relief on the merits, a prisoner satisfies this
standard by demonstrating reasonable jurists would find the
court’s assessment of the constitutional claims is
debatable or wrong. Slack v. McDaniel, 529 U.S. 473,
484 (2000); see Miller-El v. Cockrell, 537 U.S. 322,
336-38 (2003). When the district court denies relief on
procedural grounds, the prisoner must demonstrate both that
the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a
constitutional right. S ...