Scanio v. U.S.

• Decision Date: 11 October 1994
• Docket Number: No. 1733,D,1733
• Citation: 37 F.3d 858
• Parties: Charles D. SCANIO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. ocket 94-2002.
• Court: U.S. Court of Appeals — Second Circuit

Page 858

37 F.3d 858

Charles D. SCANIO, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 1733, Docket 94-2002.

United States Court of Appeals, Second Circuit.

Argued May 26, 1994.

Decided Oct. 11, 1994.

Pierce, Circuit Judge, dissented and filed opinion.

Jeffrey M. Blum, Williamsville, NY, for petitioner-appellant.

William J. Knapp, Asst. U.S. Atty. for W.D.N.Y., Buffalo, NY (Patrick H. NeMoyer, U.S. Atty., on the brief), for respondent-appellee.

Before VAN GRAAFEILAND, PIERCE, and ALTIMARI, Circuit Judges.

ALTIMARI, Circuit Judge:

Petitioner-appellant Charles D. Scanio appeals from a judgment of the United States District Court for the Western District of New York (Telesca, C.J.), denying petitioner's motion for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2255 (1988). The district court denied the motion and dismissed the petition on the ground that the petition was untimely when filed because Scanio had completed his sentence and was no longer "in custody" within the meaning of 28 U.S.C. Sec. 2255. On appeal, Scanio challenges the district court's conclusion that his petition was untimely.

For the reasons set forth below, we affirm.

BACKGROUND

On November 1, 1988, following a jury trial, Scanio was convicted of one count of structuring a currency transaction in violation of 31 U.S.C. Secs. 5324(3) and 5322(a). He was sentenced to one year imprisonment and two years' supervised release. Scanio's conviction was affirmed on appeal. United States v. Scanio, 900 F.2d 485 (2d Cir.1990). Scanio reported to prison on November 30, 1990.

While incarcerated, Scanio became eligible to spend the last third of his prison term in a community halfway house, and on July 29, 1991, he was transferred to the Salvation Army Adult Rehabilitation Center, Community Correction Center (the "Salvation Army") to serve his remaining prison time. Thereafter, on November 27, 1991, Scanio was released from the Salvation Army facility and began his term of supervised release.

On November 29, 1993, Scanio filed the instant petition in which he moved to set aside his conviction and vacate his sentence, alleging ineffective assistance of counsel at his state court trial. On December 6, 1993, the district court dismissed the petition. The court found that Scanio's term of supervised release expired at midnight on November 26, 1993, two years from the date he was released from the Salvation Army facility, and because Scanio had completed his sentence when he filed his petition on November 29, 1993, it was untimely.

Scanio now appeals.

DISCUSSION

On appeal, Scanio argues that even if the terms of his sentence were completed on November 26, 1993, the district court erred in dismissing his habeas corpus petition as untimely. Scanio maintains that given the clerk's office in the district court was closed by Order of Chief Judge Michael A. Telesca on that day, Fed.R.Civ.P. 6(a), which operates to expand the period within which to file a motion, applied to make his claim timely. The government, on the other hand, contends that the district court properly dismissed the habeas petition because it lacked jurisdiction under 28 U.S.C. Sec. 2255 to consider Scanio's claim. We agree with the government's position.

We review the district court's factual findings for clear error, see Anderson v. Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985); United States v. Springer, 946 F.2d 1012, 1015 (2d Cir.1991), and we review questions of law de novo, see Anderson v. McElroy, 953 F.2d Title 28 U.S.C. Sec. 2255 states in pertinent part:

803, 805 (2d Cir.1992); United States v. Cuervelo, 949 F.2d 559, 567 (2d Cir.1991). As a preliminary matter, we find ample support in the record for the district court's determination that Scanio completed the terms of his sentence on November 26, 1993. The record indicates that Scanio was released from incarceration on November 27, 1991. His two-year term of supervised release therefore commenced on November 27, 1991 and expired at midnight on November 26, 1993. Thus, we next consider whether Scanio met the requirements for filing a habeas corpus petition.

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, ... may move the court which imposed the sentence to vacate, set aside or correct the sentence. (emphasis added).

In order to invoke habeas corpus review by a federal court, the petitioner must satisfy the jurisdictional "in custody" requirement of 28 U.S.C. Sec. 2255. See United States v. Brilliant, 274 F.2d 618, 620 (2d Cir.) ("A district court is without jurisdiction to entertain a writ of habeas corpus or a Sec. 2255 motion if the relator or movant is not in custody."), cert. denied, 363 U.S. 806, 80 S.Ct. 1242, 4 L.Ed.2d 1149 (1960). Indeed, the Supreme Court stated in Carafas v. LaVallee that "[t]he federal habeas corpus statute requires that the applicant must be 'in custody' when the application for habeas corpus is filed." 391 U.S. 234, 238, 88 S.Ct. 1556, 1560, 20 L.Ed.2d 554 (1968) (emphasis added).

Although physical confinement is not necessary in order for a prisoner to challenge his sentence, see Jones v. Cunningham, 371 U.S. 236, 241-43, 83 S.Ct. 373, 376-77, 9 L.Ed.2d 285 (1963) (holding prisoner on parole remains "in custody"), the Supreme Court has never gone so far as to hold 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," Maleng v. Cook, 490 U.S. 488, 491, 109 S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989) (emphasis in original). The rationale in such a case is that the "habeas petitioner suffers no present restraint from a conviction." Id. at 492, 109 S.Ct. at 1926; see, e.g., Ward v. Knoblock, 738 F.2d 134, 138-39 (6th Cir.1984) (holding that to confer habeas jurisdiction on petitioner, there must be significant deprivation of his liberty), cert. denied, 469 U.S. 1193, 105 S.Ct. 970, 83 L.Ed.2d 974 (1985).

In sum, the habeas corpus statute confers jurisdiction to district courts to entertain habeas petitions for relief solely from persons who satisfy the status or condition of being "in custody" at the time the petition is filed, and a petitioner under supervised release may be considered "in custody."

Because in the instant matter Scanio filed his habeas petition on November 29, 1993, three days after his term of supervised release expired, we find that at the time of the filing, he was not "in custody." See Maleng, 490 U.S. at 491, 109 S.Ct. at 1925. Under these circumstances, Scanio was jurisdictionally barred from asserting his habeas corpus claim.

We reject Scanio's argument that Fed.R.Civ.P. 6(a) should be applied in this case to expand the time period within which to file his habeas motion. Fed.R.Civ.P. 6(a) provides that where the last day of a time period for filing a court paper is a Saturday, Sunday, holiday, or a day on which the clerk's office is inaccessible, the period runs until the end of the next business day. Clearly, Fed.R.Civ.P. 6(a) does not extend the jurisdiction of the district court. See Fed.R.Civ.P. 82 ("These rules shall not be construed to extend or limit the jurisdiction of the United States district courts...."). Fed.R.Civ.P. 6(a) is a procedural rule that governs procedural matters and operates to enlarge certain filing periods.

The "in custody" requirement of Sec. 2255 is more than a filing period; it is a status or condition that cannot be altered by a procedural rule. Either Scanio was "in custody" on November 29, 1993, or he was not. Because we find that Scanio was not "in custody," We have considered all of Scanio's remaining arguments and find them to be without merit. Accordingly, we affirm the district court's dismissal of Scanio's habeas corpus petition.

we hold that the district court lacked jurisdiction to entertain his claim.

CONCLUSION

Based on the foregoing, we affirm the judgment of the district court.

PIERCE, Circuit Judge, dissenting:

This is a case concerning jurisdiction and it necessarily implicates the right of access to the courts. In my view, the majority has given an incorrect and needlessly narrow interpretation to applicable principles, with the result that appellant will be denied his day in court. I respectfully disagree and dissent.

Scanio was prosecuted in the Western District of New York for structuring a currency transaction in violation of 31 U.S.C. Secs. 5324(3) and 5322(a). After trial by jury, he was convicted and sentenced to a one year term of imprisonment and two years of supervised release. Scanio appealed to this Court and in an unanimous opinion, the conviction was affirmed. United States v. Scanio, 900 F.2d 485 (2d Cir.1990) (Pierce, J.).

Scanio began serving the prison portion of his sentence on November 30, 1990. He remained in prison until July 29, 1991, when he was transferred to the Salvation Army Adult Rehabilitation Center (hereinafter, the "Salvation Army") to serve the remainder of his one-year term of incarceration, which was to end on November 29, 1991. The Salvation Army released him early, on November 27, 1991, the day before Thanksgiving Day. Upon release from the Salvation Army facility, Scanio commenced the two-year supervised release portion of his sentence.

Scanio was nearing the end of the period of supervised release when his new attorney sought to file a second petition pursuant to 28 U.S.C. Sec. 2255, this time seeking to set aside the conviction, asserting for the first time ineffective assistance of trial counsel. On Friday, November 26, 1993, counsel went to the federal courthouse in Rochester, New York, to file the subject habeas petition. He was informed that the Clerk's Office was closed in observance of the Thanksgiving...