]                                                                     [ PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                      FOR THE ELEVENTH CIRCUIT            U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                                                                APR 18 2000
                        ________________________
                                                             THOMAS K. KAHN
                                                                  CLERK
                               No. 98-6626
                          Non-Argument Calendar
                        ________________________

                      D.C. Docket No. 97-01684-CV-S-S


CLAY MEANS,

                                                        Petitioner-Appellant,

     versus


STATE OF ALABAMA,
BILL PRYOR, ATTORNEY GENERAL
OF THE STATE OF ALABAMA,
                                                        Respondents-Appellees.

                       __________________________

              Appeal from the United States District Court for the
                         Northern District of Alabama
                        _________________________
                              (April 18, 2000)

Before ANDERSON, Chief Judge, and COX and WILSON, Circuit Judges.


PER CURIAM:
      Clay Means, a federal prisoner proceeding pro se, appeals from the district

court’s denial of his habeas corpus petition, brought under 28 U.S.C. § 2254,

attacking a state conviction whose sentence had run that was used to enhance his

current federal sentence.

      On appeal, Means argues that the district court correctly construed his

habeas petition as arising under § 2254. The district court found that Means’s claim

was procedurally barred. Means maintains that the claim was not procedurally

barred, or, in the alternative, that he met the burden of showing actual innocence to

overcome that bar.

      A district court’s grant or denial of a habeas corpus petition is reviewed de

novo. See Sims v. Singletary, 155 F.3d 1297, 1304 (11th Cir. 1998), cert. denied,

119 S. Ct. 2373 (1999).

      Under § 2254, federal district courts have jurisdiction to entertain habeas

petitions only from people who are “in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). The Supreme Court

has held that a petitioner is not in custody and thus cannot challenge a conviction

when the sentence imposed for that conviction has expired. See Maleng v. Cook,

490 U.S. 488, 490-91, 109 S. Ct. 1923, 1925 (1989). But we have held that the

Court in Maleng permitted currently incarcerated petitioners to challenge a



                                          2
sentence enhanced by an expired sentence. See White v. Butterworth, 70 F.3d 573,

574 (11th Cir. 1995), corrected, 78 F.3d 500 (11th Cir. 1996). “In order to meet

the ‘in custody’ requirement, the petitioner is deemed to be challenging the current

sentence that has been enhanced by an expired conviction, rather than directly

challenging the expired conviction.” Van Zant v. Florida Parole Commission, 104

F.3d 325, 327 (11th Cir. 1997). In this way a petitioner can challenge the expired

sentence. See id. However, a petitioner who challenges an expired state sentence

that was used to enhance his current federal sentence must bring his suit under 28

U.S.C. § 2255. See Birdsell v. State of Alabama, 834 F.2d 920 (11th Cir. 1987).

      Means claims that he intended to bring his petition under 28 U.S.C. § 2254.

It is true that federal courts must look beyond the labels of motions filed by pro se

inmates to interpret them under whatever statute would provide relief. See United

States v. Jordan, 915 F.2d 622, 624-25 (11th Cir. 1990). However, § 2255

designates the United States Attorney as the proper defendant in such an action.

Therefore, we conclude that we do not have jurisdiction to entertain this action and

that it should have been brought as a § 2255 petition. Accordingly we remand this

action to the district court with instructions to serve notice of this petition on the

United States Attorney and thereafter to construe this action as a § 2255 petition.




                                            3
The State of Alabama shall be permitted to participate in this action as an amicus

curie.

VACATED and REMANDED.1




         1
             Petitioner’s request for oral argument is hereby denied.
                                              4
