United States District Court, Western District of Arkansas, Texarkana Division
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
HON. BARRY A. BRYANT U.S. MAGISTRATE JUDGE
Before the Court is the Motion for Post Judgment Relief 28 U.S.C. 2255 (ECF No. 26) filed herein by LEMUEL ROBERT HALL, (hereinafter referred to as “Hall”). Hall is not currently confined in any Federal institution. The Motion was referred for findings of fact, conclusions of law, and recommendations for the disposition of the case. No response has been ordered and the Court finds none is required. The Court has considered the entire record and as set out below, recommends this Motion be DENIED.
1. Procedural Background:
Hall was originally indicted on January 9, 2008 and charged with two counts of theft of money from the Social Security Administration. Shortly, thereafter he was ordered to undergo a psychiatric examination by United States District Judge Harry F. Barnes. The Court later held a competency hearing on February 20, 2009 and Hall was found incompetent to proceed. He was thereafter committed to the custody of the Attorney General to determine whether there was a suitable probability that in the foreseeable future he would gain the capacity to permit the trial to proceed.
On August 13, 2009, the Court set the case for trial for August 17, 2009. Trial was continued on motion of Hall and reset for October 19, 2009. Hall was also released from custody on August 14, 2009. After a change of lawyers and a new trial date being scheduled Hall appeared for a change of plea and entered a plea of guilty to Counts 4 and 5 of a Superceding indictment, he was sentenced to three (3) years of unsupervised probation.
Hall appealed and the United States Court of Appeals for the Eighth Circuit, remanded to allow this Court to consider Hall’s competency to enter a plea and whether or not to allow him to withdraw his plea. On May 23, 2012, Hall appeared before Judge Barnes and was allowed to withdraw his plea to the felony counts. The Government then moved to dismiss the indictment and the Court granted the motion.
On the same day, May 23, 2012, the Government filed a two count information charging Hall with two counts of theft of public money in the instant case. ECF No. 1. Hall entered a plea of guilty and was sentenced to one year unsupervised probation on that same day. ECF No. 4. On June 27, 2012, Hall filed a Motion to Vacate Judgment. ECF No. 5. In this motion, Hall raised double jeopardy, speedy trial, Rule 4 violations, failure to consider medical records at the competency hearing, and ignoring the Eighth Circuit’s mandate, as grounds to set aside the Judgment. Id. On October 19, 2012, the Court denied the Motion to Vacate. ECF No. 10. Hall appealed. ECF No. 11 and 14. On October 1, 2013, the Eighth Circuit affirmed the denial of the Motion to Vacate. See United States v. Hall, 533 Fed.Appx. 680 (8th Cir. 2013).
2. Instant Petition:
Hall filed the instant Motion for Post Judgment Relief 28 U.S.C. 2255, on August 19, 2014. ECF No. 26. In this Motion, Hall alleges he was afforded ineffective assistance of counsel, trial court error in allowing him to plead guilty after having found him incompetent on three occasions, and actual innocence of the charges. Id. Hall makes no specific allegation about the actual innocence claim, rather just a conclusory statement of “actual innocence.”
I find no response is necessary based on my review of the record of both proceedings and the Motion filed by Hall.
Hall was sentenced to a term of one year of unsupervised probation, which began on May 23, 2012. ECF No. 4. No petition to revoke or extend that probation was ever filed or granted, therefore, Hall’s term of probation ended on May 23, 2013. The instant Motion was filed August 19, 2014. ECF No. 26. Section 2255 states in part: “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . .” 28 U.S.C. § 2255(a). A term of probation is sufficient to confer jurisdiction under the “in custody” requirement of section 2255(a). See United States v. Spawr Optical, 864 F.2d 1467, 1470 (8th Cir. 1988). However, the Supreme Court has held once the sentence has completely expired, the individual is no longer “in custody” for purposes of habeas corpus attack, even if that conviction has been used to enhance the sentence of a later conviction. See Maleng v. Cook, 490 U.S. 488 (1989) (petition filed pursuant to 28 U.S.C. § 2254). Here there is nothing before the Court to indicate Hall is still subject to any sort of confinement or supervision. The docket in this case, shows his term of probation expired on May 23, 2013. Hall is no longer “in custody” for the purposes of a § 2255 proceeding. Accordingly, the Court lacks jurisdiction to consider this Motion.
Accordingly, based on the foregoing, it is recommended the Motion for Post Judgment Relief 28 U.S.C. 2255 (ECF No. 26) be DENIED. Further, pursuant to 28 U.S.C. §1915(a), I recommend the finding that an ...