81 F3d 163 Danforth v. F Foley

81 F.3d 163

Lewis J. DANFORTH, Petitioner-Appellant,
John F. FOLEY, Circuit Judge, Milwaukee County, Branch 7,

No. 94-3777.

United States Court of Appeals, Seventh Circuit.

Submitted March 18, 1996.*
Decided March 26, 1996.

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Before CUMMINGS, BAUER and FLAUM, Circuit Judges.


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Lewis James Danforth seeks review of the denial of his second petition for writ of habeas corpus under 28 U.S.C. § 2254. His first was dismissed without prejudice four years earlier for failure to exhaust state remedies. The intervening four years not only allowed Danforth the time to pursue his claims in the state courts of Wisconsin but also brought an end to Danforth's sentence. As the district court saw it, Danforth's second petition was a nonstarter. We agree.


Section 2254(a) authorizes challenges to custody, but Danforth was not "in custody" when he commenced his current petition. In the petition, Danforth expressly acknowledged that he had been "released from parole" back in June 1992. As such, Danforth was not eligible for relief under the provisions of section 2254 because his sentence was fully expired at the time he filed his second petition. See Maleng v. Cook, 490 U.S. 488, 490-92 (1989) (the "in custody" requirement for purposes of federal habeas has never been extended to the situation where a habeas petitioner suffers no present restraint from a conviction at the time the petition is filed); see also Garlotte v. Fordice, 115 S.Ct. 1948, 1951 (1995).




After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need for Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record alone pursuant to Rule 34(f)