United States District Court, N.D. Texas, Fort Worth Division
MEMORANDUM OPINION AND ORDER
McBRYDE UNITED STATES DISTRICT JUDGE.
a petition for writ of habeas corpus under 28 U.S.C. §
2254 filed by petitioner, Bentley Mark Jenkins, a federal
inmate incarcerated at FCI Pollock in Louisiana, against Ken
Paxton, Attorney General for the State of Texas, respondent.
No. service has issued against respondent. After having
considered the petition and relief sought by petitioner, the
court has concluded that the petition should be dismissed for
lack of subject matter jurisdiction.
FACTUAL AND PROCEDURAL HISTORY
November 14, 1991, in the Criminal District Court Number
Four, Tarrant County, Texas, No. 0410880D, petitioner pleaded
nolo contender pursuant to a plea agreement to one count of
aggravated assault causing serious bodily injury and was
sentenced to 10 years confinement. (Pet'r's Mem. Ex.
A-(19), doc. 2-2.) He also agreed to a plea in bar to one
count of robbery in No. 0458301W. (Id., Ex. A-18.)
By way of this petition, petitioner challenges his 1991
conviction and plea in bar on substantive grounds, (Pet.
6-11, doc. 1.) The conviction and/or the facts of the plea in
bar were later used to apply a career-offender enhancement to
his federal sentence for bank robbery in this court in
United States v. Jenkins, No.
SUBJECT MATTER JURISDICTION
of the Rules Governing Section 2254 Cases in the United
States District Courts and 28 U.S.C. § 2243 both
authorize a habeas-corpus petition to be summarily
dismissed. The Court of Appeals for the Fifth Circuit
recognizes the district courts' authority under Rule 4 to
examine and dismiss frivolous habeas petitions prior to any
answer or other pleading by the state. Riser v.
Johnson, 163 F.3d 326, 328 (5th Cir. 1999).
for this court to have subject matter jurisdiction over a
claim(s) under § 2254, the petitioner must be "in
custody" pursuant to the underlying conviction the
subject of the proceeding. Lackawanna Cty, Dist.
Att'y v. Coss, 532 U.S. 394, 394 (2001); Maleng
v. Cook, 490 U.S. 488, 492 (1989). A federal
court lacks subject matter jurisdiction to entertain a §
2254 petition that directly challenges the validity of a
conviction for which the sentence has been fully discharged
because the petitioner is not "in custody" for that
conviction. This is true even if the prior conviction is used
to enhance the sentence imposed for any subsequent crime of
which the petitioner is convicted. Josey v. Thaler,
No. 4:11-CV-0633-A, 2012 WL 195002 at *2 (N.D. Tex. Jan. 23,
2012) (citing Maleng, 490 U.S. at 492).
petitioner was never "in custody" for purposes of
the plea in bar in No. 0458301W and his 10-year sentence in
No. 041880D was fully discharged years ago; thus, he was not
"in custody" under the 1991 conviction or plea in
bar at the time the petition was filed. Accordingly, he may
not now challenge the conviction or plea-in-bar proceeding
directly in a § 2254 petition. Garlotte v.
Fordice, 515 U.S. 39, 45 (1995); Maleng, 490
U.S. at 492-93.
reasons discussed herein, The court ORDERS that the
petitioner's petition for writ of habeas corpus under 28
U.S.C. § 2254 be, and is hereby, dismissed with
prejudice for lack of subject matter jurisdiction and that
all pending motions be, and are hereby, denied. The court
further ORDERS that a certificate of appealability be, and is
Petitioner has challenged his sentence
enhancement as a career offender based on his 1991 conviction
and/or plea in bar in at least two prior proceedings in this
court, See Jenkins v. United States, Civil Action
No. 4:18-CV-777-0 (petition for writ of coram nobis);
Jenkins v. United States, Civil Action No.
4:16-CV-448-A (§ 2255 motion).
Section 2243, governing applications
for writ of habeas corpus, provides:
A court, justice or judge entertaining an application
for a writ of habeas corpus shall forthwith award the writ or
issue an order directing the respondent to show cause why the
writ should not be granted, unless it appears from the
application that ...