United States District Court, D. Massachusetts
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (DOC. NO.
Sorokin United States District Judge.
Lopes, an immigration detainee at the Buffalo Federal
Detention Facility, has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. In his petition,
Lopes asserts three challenges to Massachusetts state
convictions for firearms offenses and driving under the
influence. The respondent has opposed petition, first urging
that this Court lacks jurisdiction to consider it because
Lopes no longer is “in custody” pursuant to the
judgment he seeks to challenge, and alternatively arguing
that the claims are procedurally defaulted or meritless.
Because this Court lacks jurisdiction to hear Lopes's
claims, the petition is dismissed.
22, 2013, following a jury trial in Quincy District Court,
Lopes was convicted of driving under the influence
(“DUI”), carrying a firearm without a license,
and two other firearms charges. Doc. No. 1 at
The charges stemmed from a Massachusetts state trooper's
discovery of Lopes “unconscious in the driver's
seat” of a car that was stopped in the right lane of
Route 93 South. Doc. No. 18 at 3. After rousing Lopes,
arresting him, and transporting him to police barracks, the
trooper discovered a loaded handgun in Lopes's pants
pocket. Id. at 3-4.
whose native language is Creole, pleaded guilty to DUI but
proceeded to trial on the firearms charges. Doc. No. 1 at 2,
5. His motions to suppress statements he made admitting
ownership of the gun were denied, and his defense at trial
challenging the voluntariness and truthfulness of those
statements was unsuccessful. S.A. at 258-61, 303-04,
430-31.Immediately after the jury returned its
guilty verdicts, the trial court sentenced Lopes to a
mandatory-minimum sentence of eighteen months'
imprisonment. Doc. No. 1 at 1; S.A. at 435-36. After filing a
timely notice of appeal, new counsel appeared on Lopes's
behalf and, more than a year after Lopes was convicted and
sentenced, filed a motion for a new trial. S.A. at 5-6. The
trial court denied Lopes's motion within ten days of its
filing. Doc. No. 18 at 3; S.A. at 6.
his eighteen-month sentence expired in the fall of 2014,
while his direct appeal was pending, Lopes was released from
custody. Doc. No. 19 at 11 & n.8; Doc. No. 21 at 4. The
Massachusetts Appeals Court affirmed his conviction and
sentence and the denial of his new- trial motion on May 7,
2015 in an unpublished decision. Commonwealth v.
Lopes, 30 N.E.3d 134 (Mass. App. Ct. 2015)
(unpublished); S.A. at 189-90. The Supreme Judicial Court
denied further review on June 26, 2015. Commonwealth v.
Lopes, 35 N.E.3d 720 (2015) (table); S.A. at 206. Lopes
did not seek certiorari in the United States Supreme Court.
received a notice of removal proceedings stemming from his
criminal conviction in September 2015. Doc. No. 21 at 4; Doc.
No. 21-1 at 2. He was taken into immigration custody in March
2016 and detained at the Federal Detention Facility in
Buffalo, New York pending completion of his removal
proceedings. Doc. No. 21 at 4. He was ordered removed in June
2016. Id.; Doc. No. 21-2.
September 23, 2016 - six months after his immigration
detention began, and a day before his one-year limitation
period for filing a federal habeas petition expired,
see 28 U.S.C. § 2244(d); Gonzalez v.
Thaler, 565 U.S. 134, 150 (2012) - Lopes filed his
counseled federal habeas petition in this Court. His petition
raises the following three claims: 1) “Lopes did not
execute a knowing and intelligent Miranda waiver at
the time of his interrogation, in violation of his Fifth and
Fourteenth Amendment rights, ” Doc. No. 1 at 5; 2)
“Introduction of the alleged statements at trial
violated Lopes's Fifth and Fourteenth Amendment rights
where, viewing the totality of the circumstances, the
statements were not voluntary, ” id. at 7; and
3) “Lopes's trial counsel was ineffective in
suggesting the jury should credit the arresting officer's
account of Lopes's confession, ” id. at 8.
respondent answered Lopes's petition and both sides
briefed the merits of the claims. Doc. Nos. 12, 18, 19.
Before addressing the merits of his claims, the respondent
argued Lopes had not established he was “in
custody” for purposes of § 2254, as his
Massachusetts sentence had expired two years before he filed
his federal petition. Doc. No. 19 at 9-12. The Court ordered
a reply by Lopes on that jurisdictional issue, Doc. No. 20,
and Lopes submitted one thereafter, Doc. No. 21. With that
submission, all issues are fully briefed and ripe for
disposition; because the Court resolves the jurisdictional
issue against Lopes, however, it need not (indeed, it may
not) address the merits of Lopes's claims or the
alternative procedural defenses raised by the respondent.
federal court may entertain “an application for a writ
of habeas corpus” pursuant to 28 U.S.C. § 2254 if
it is filed “on behalf of a person in custody
pursuant to the judgment of a State court.” §
2254(a) (emphasis added). The Supreme Court has construed
§ 2254(a) “as requiring that the habeas petitioner
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) (emphasis added). A number of Supreme Court decisions
have explored the parameters of this “in custody”
requirement. None, however, have held “that a
habeas petitioner may be ‘in custody' under a
conviction when the sentence imposed for that conviction has
fully expired at the time his petition is
filed.” Id. at 491 (emphasis in original).
effects of a state criminal conviction are appropriately
considered when assessing whether a federal habeas petition
filed by a person “in custody” has become moot in
light of a change in the petitioner's custodial status.
Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968);
accord Leitao v. Reno, 311 F.3d 453, 455-56 (1st
Cir. 2002); Robson v. United States, 526 F.2d 1145,
1147 (1st Cir. 1975). The Supreme Court, however, has
admonished “that once the sentence imposed for a
conviction has completely expired, the collateral
consequences of that conviction are not themselves sufficient
to render an individual ‘in custody' for the
purposes of a habeas attack upon it.” Maleng,
490 U.S. at 492; accord Lefkowitz v. Fair, 816 F.2d
17, 19 (1st Cir. 1987). This is so even where the
“collateral consequence” cited by a petitioner is
a subsequent sentence that was enhanced as a result of the
conviction he seeks to attack, or a transfer to federal
immigration detention pending removal proceedings initiated
because of the conviction he seeks to attack. See
Maleng, 490 U.S. at 492-93 (holding that even where a
subsequent sentence is enhanced because of a prior
conviction, “[w]hen the second sentence is imposed, it
is pursuant to the second conviction that the petitioner is
incarcerated and is therefore ‘in custody, '”
not the first); West v. Massachusetts, No.
14-cv-10678-IT, 2014 WL 7192386, at *2 (D. Mass. Dec. 17,
2014) (“The fact that a state conviction is used to
enhance a federal sentence is insufficient to render a
petitioner ‘in custody' pursuant to that state
conviction.”); Walker v. Holder, No.
10-cv-10802-RWZ, 2010 WL 2105884, at *1 (D. Mass. May 24,
2010) (concluding petitioner was “not ‘in
custody' for purposes of § 2254” where he had
“completed his sentence” and was “in
custody - not as a sentenced prisoner - but as an immigration
there is no dispute that in September 2016, when Lopes filed
his federal habeas petition, he was in federal immigration
detention. He was no longer in the custody of a Massachusetts
detention facility serving a sentence of incarceration
imposed pursuant to the convictions he seeks to challenge;
that sentence had concluded nearly two years earlier. He does
not assert that his state sentence was followed by a period
of probation or other state supervision, and the state-court
record establishes that the relevant sentence was limited to
an eighteen-month period of incarceration with no additional
terms or restrictions imposed to follow that term. Cf.
Walker, 2010 WL 2105884, at *1 n.2 (“If
[petitioner] were a probationer or parolee under the
conviction he seeks to challenge, he would satisfy the
‘in custody' requirement of § 2254
notwithstanding the fact that he [is] not [presently]
incarcerated pursuant to his conviction.”). Because the
sentence imposed for the conviction Lopes identifies in ...