Sean Reilly v. Secretary, Florida Department of Corrections

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11565
____________________
SEAN P. REILLY,
Petitioner-Appellant,
versus
SECRETARY, FLORIDA DEPARTMENT
OF CORRECTIONS,
Respondent-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:20-cv-00145-TKW-EMT
____________________
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2 Opinion of the Court 21-11565
Before J ORDAN, BRASHER , and ABUDU, Circuit Judges.
PER C URIAM :
Sean Reilly’s 2020 habeas corpus petition, see 28 U.S.C.
§ 2254, sought to challenge a 2009 Florida conviction and judgment
for criminal use of identification. The district court dismissed the
petition for lack of subject-matter jurisdiction on two alternative
grounds. First, it ruled that the petition was an unauthorized sec-
ond or successive application. See 28 U.S.C. § 2244(b)(3). Second,
it concluded that Mr. Reilly was not “in custody” on the 2009 judg-
ment when he filed the petition. See 28 U.S.C. §§ 2241(c)(3),
2254(a). Following oral argument and a review of the record, we
affirm.1
The 2009 Judgment. For the 2009 criminal use of identifi-
cation conviction, the state court sentenced Mr. Reilly on Count 1
to 11 months and 29 days of imprisonment, followed by two years
of community control and two years of probation. As to Count 5,
the state court sentenced him to two years of community control
followed by two years of probation, to run consecutive to the in-
carcerative portion of the sentence on Count 1 but concurrent with
the supervisory portions of the sentence on Count 1.
1 As we write for the parties, we set out only what is necessary to explain our
decision. For a fuller procedural summary of Mr. Reilly’s judgments and ha-
beas corpus petitions, see Reilly v. Sec’y, Fla. Dep’t of Corr., 2023 WL 7179321
(11th Cir. Nov. 1, 2023). Most of the facts are taken from our summary in that
case.
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21-11565 Opinion of the Court 3
The 2010 Conviction and VOP Judgment. In March of
2010, Mr. Reilly was convicted of witness tampering, and in De-
cember of 2010, he was found to have violated the conditions of
his supervision/probation for the 2009 judgment. The state court
imposed a sentence of 60 months’ imprisonment as to Count 1 of
the 2009 conviction and a split sentence of two years of community
control followed by two years of probation as to Count 5 of the
2009 conviction.
The 2015 Conviction and VOP Judgment. In April of 2015,
while he was serving the supervisory portion of the sentence from
the 2010 violation judgment, Mr. Reilly was convicted of aggra-
vated stalking and found to have violated the conditions of his pro-
bation/supervision on that judgment. The state court imposed a
sentence of five years’ imprisonment for the aggravated stalking
conviction and five years’ imprisonment for the violation of proba-
tion, to be served consecutively.
To satisfy the “in custody” requirement, a “habeas 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) (holding that a petitioner was not in custody on a decades-
old conviction, for which he had served the entirety of the sen-
tence, just because that conviction was used to enhance his sen-
tence) (citation and internal quotation marks omitted). In Lacka-
wanna County District Attorney v. Coss, the Supreme Court held that:
[O]nce a state conviction is no longer open to direct
or collateral attack in its own right because the
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4 Opinion of the Court 21-11565
defendant failed to pursue those remedies while they
were available (or because the defendant did so un-
successfully), the conviction may be regarded as con-
clusively valid. If that conviction is later used to en-
hance a criminal sentence, the defendant generally
may not challenge the enhanced sentence through a
petition under § 2254 on the ground that the prior
conviction was unconstitutionally obtained.
532 U.S. 394, 403−04 (2001) (citation omitted). And in Garlotte v.
Fordice, 515 U.S. 39, 41 (1995), the Court held that a state prisoner
incarcerated under consecutive sentences may apply for federal ha-
beas relief from the conviction that ran first in the series even
though he had already served that sentence and was serving the
next in the series.
In his 2020 petition, Mr. Reilly sought to challenge the initial
2009 judgment. At the time he filed that petition, however, he had
served the imprisonment portion of that judgment (i.e., the 11
months and 29 days initially imposed, and the five years imposed in
the 2010 VOP judgment). He was serving the five-year sentence
imposed in the 2015 aggravated stalking conviction and had not
begun to serve the consecutive five-year sentence imposed in the
2015 VOP judgment. He was therefore “in custody” under Garlotte
for purposes of both the 2015 conviction and 2015 VOP adjudica-
tion. But that does not help him because the 2020 petition did not
challenge the 2015 conviction or the 2015 VOP adjudication in any
way. See Reilly, 2023 WL 7179321, at *2 (explaining that the 2015
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21-11565 Opinion of the Court 5
VOP adjudication was challenged in a different petition filed in
2021). As noted earlier, the judgment under attack in the 2020 pe-
tition was the 2009 judgment.
We conclude that Mr. Reilly was not “in custody” on the
2009 judgment when he filed the 2020 habeas corpus petition. The
district court’s dismissal of that petition for lack of subject-matter
jurisdiction is therefore affirmed. See Clement v. Florida, 59 F.4th
1204, 1209 (11th Cir. 2023) (“in custody” requirement of § 2254(a)
is jurisdictional).2
AFFIRMED.
2 Given our resolution of the appeal, we need not and do not address whether
the 2020 petition was “second or successive.”
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