United States District Court, N.D. West Virginia
MEMORANDUM OPINION AND ORDER DISMISSING CASE WITHOUT
PREJUDICE [DKT. NO. 4]
M. KEELEY UNITED STATES DISTRICT JUDGE.
before the Court is the Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence (Dkt. No.
filed by the petitioner, Alex Tejeda (“Tejeda”).
For the reasons that follow, the Court concludes that it
lacks subject matter jurisdiction over Tejeda's petition
because he is no longer “in custody” for the
conviction and sentence he is presently challenging.
Accordingly, the Court DISMISSES this case
WITHOUT PREJUDICE for lack
of subject matter jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
April 26, 2013, Tejeda pleaded guilty in this Court to one
count of Assault with a Dangerous Weapon with Intent to do
Bodily Harm - Aiding and Abetting, in violation of 18 U.S.C.
§§ 2, 7(3), and 113(a)(3) (No. 1:12CR114-3, Dkt.
No. 72). On April 30, 2013, the Court sentenced Tejeda to 12
months of incarceration and a $100 mandatory special
assessment, with no supervised release to follow (No.
1:12CR114-3, Dkt. No. 80). Because he received credit for
time served since January 29, 2013, id., Tejeda
satisfied this 12-month sentence on January 29, 2014.
21, 2015, Tejeda was charged in the United States District
Court for the District of Alaska with one count of Conspiracy
to Distribute and Possess with Intent to Distribute
Controlled Substances, in violation of 21 U.S.C. §§
846, 841(a)(1), (b)(1)(A), and (b)(1)(C); two counts of
Possession with Intent to Distribute Controlled Substances,
in violation of §§ 841(a)(1), (b)(1)(B), and
(b)(1)(C); and one count of Distribution of Methamphetamine
and Heroin, in violation of 21 U.S.C. §§ 841(a)(1)
and (b)(1)(C) (No. 3:15CR66, Dkt. No. 3). After a four-day
jury trial, Tejeda was found guilty of all four counts and
was later sentenced to 180 months of incarceration and 10
years of supervised release (No. 3:15CR66, Dkt. Nos. 109,
6, 2017, Tejeda filed a pro se motion in this Court to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255 (Dkt. No. 1). After he re-filed his motion on the
court-approved form (Dkt. No. 4), the Court conducted a
preliminary review under Rule 4 of the Rules Governing
Section 2255 Proceedings to determine whether his motion has
merit. Because the preliminary review determined that
Tejeda's motion was untimely, the Court issued a notice
pursuant to Hill v. Braxton, 277 F.3d 701, 707 (4th
Cir. 2002), notifying Tejeda that his case may be dismissed
as untimely unless he could demonstrate that the statute of
limitations should be tolled (Dkt. No. 8). Although Tejeda
did not file a response, the Court's subsequent review
determined that Tejeda is no longer “in custody”
for his conviction and sentence in this Court, and,
therefore, it lacks subject matter jurisdiction over his
§ 2255 motion.
prisoners, who are “in custody, ” can assert the
right to be released if (1) “the sentence was imposed
in violation of the Constitution or laws of the United
States, ” (2) “the court was without jurisdiction
to impose such sentence, ” (3) “the sentence was
in excess of the maximum authorized by law, ” or (4)
the sentence “is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). In Maleng v.
Cook, 490 U.S. 488, 490-91 (1989), the Supreme Court
held that a petitioner is not “in custody” under
a conviction for the purpose of § 2254 relief when the
sentence imposed for that conviction has fully expired. Since
then, courts have held that Maleng's analysis
equally applies when a movant is no longer in federal custody
for purposes of § 2255 when the sentence imposed for
that conviction has expired. See, e.g., United
States v. Esogbue, 357 F.3d 532, 534 (5th Cir. 2004).
the Fourth Circuit has not yet addressed the question, other
courts within the Fourth Circuit have. See, e.g.,
Cannady v. United States, No. 5:97-CR-39-BO-5, 2017
WL 2167890, at *2 (E.D. N.C. May 16, 2017). The Court agrees
with the analysis in Cannady and concludes that, to
obtain relief under § 2255, the petitioner must be
“in custody” for the conviction or sentence under
attack at the time his or her motion is filed.
April 30, 2013, the Court sentenced Tejeda to 12 months of
incarceration, with credit for time served since January 29,
2014, a $100 mandatory special assessment, and no supervised
release to follow (No. 1:12CR114-3, Dkt. No. 80). Because he
received credit for time served since January 29, 2013,
Tejeda satisfied this sentence on January 29, 2014. Long
after satisfying this sentence, Tejeda filed the instant
§ 2255 motion on June 6, 2017 (Dkt. No. 4).
Tejeda is presently in BOP custody at FCI McKean,
is not serving the 12-month sentence imposed by this Court
but rather his 180-month sentence imposed by the District of
Alaska (No. 3:15CR66, Dkt. No. 265). Therefore, Tejeda is no
longer “in custody” on the conviction he
challenges. Accordingly, this Court lacks jurisdiction to
decide his § 2255 motion.
these reasons, the Court DISMISSES this case
WITHOUT PREJUDICE for lack of subject ...