                                                                             [PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                  ELEVENTH CIRCUIT
                                                                     JUNE 11, 2012
                                            No. 10-15202
                                      ________________________        JOHN LEY
                                                                       CLERK

                            D.C. Docket No. 3:09-cv-01153-HLA-JRK



RUBEN DIAZ,

llllllllllllllllllllllllllllllllllllllll                     Petitioner - Appellant,

                                             versus

STATE OF FLORIDA FOURTH JUDICIAL CIRCUIT,
IN AND FOR DUVAL COUNTY,
ATTORNEY GENERAL, STATE OF FLORIDA,

llllllllllllllllllllllllllllllllllllllll                     Respondents - Appellees.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (June 11, 2012)
Before EDMONDSON and WILSON, Circuit Judges, and VINSON,* District Judge.

WILSON, Circuit Judge:

       Petitioner Ruben Diaz appeals the district court’s dismissal of his 28 U.S.C.

§ 2254 petition for failure to meet the “in custody” requirement. The district court

found that because Diaz had completely served the sentence imposed by the state

court, he was no longer “in custody pursuant to the judgment of a State court” as

required by 28 U.S.C. § 2254(a). After review and oral argument, we affirm the

district court’s dismissal.

                                               I

       Back in 2002, Florida state officials arrested Diaz, and he was later indicted

on state racketeering charges. Before going to court for the state counts, Diaz was

transferred to federal custody and prosecuted on federal drug charges arising from

the same events. After pleading guilty to the federal drug charges, Diaz was

sentenced to a 150-month term of federal imprisonment, to be followed by a 5-

year term of supervised release. The federal district court imposed this sentence to

run concurrently with any state court sentence to be imposed under the state




       *
         Honorable C. Roger Vinson, United States District Judge for the Northern District of
Florida, sitting by designation.

                                               2
indictment.1

       In 2004, Diaz returned to state court to face the Florida racketeering

charges. He entered a negotiated guilty plea to one count of the indictment, but

his state sentence was not finalized for some time after entry of this plea. During

his first sentencing, the state court sentenced Diaz to a total of twenty years of

imprisonment to run concurrently with his federal incarceration. The state court

later corrected an error in that sentence and clarified that Diaz was to serve the

first 150 months (12.5 years) of his sentence in federal custody, thereby satisfying

his federal term of imprisonment, and then return to state custody to serve the

remaining 90 months (7.5 years).

       The parties later concluded that Diaz was unable to begin his term of

incarceration in federal custody. There was a disagreement over the extent to

which Diaz would receive federal credit for his time served in state custody, so the

state court fashioned a new sentence in hopes of effectuating the original result.2

To achieve its original twenty-year sentence, the state court imposed a set of

consecutive sentences. The state court sentenced Diaz to a term of 7.5 years of

       1
        The Supreme Court recently held that a federal district court acts within its discretion to
impose a sentence relative to an anticipated state court sentence based on the same underlying
conduct. Setser v. United States, 566 U.S. ___, 132 S. Ct. 1463, 1468 (2012).
       2
       The State now acknowledges that this resentencing was based on an apparent
misunderstanding of federal law.

                                                 3
imprisonment to be served in state custody that was to run consecutively and prior

to the 12.5-year federal sentence that had been imposed by the federal district

court.3

       On January 9, 2009, Diaz fully satisfied his state sentence of 7.5 years of

imprisonment and was transferred into federal custody.4 He requested a correction

of the calculation of his federal sentence, seeking credit for time served in custody

prior to the imposition of his federal sentence. In its administrative decision

granting relief, the Federal Bureau of Prisons explained that the federal district

court had imposed a sentence to run concurrently with Diaz’s state confinement.

It went on to clarify that Diaz’s federal sentence commenced on March 24,

2004—the date he received the federal sentence—based on a “Nunc Pro Tunc

Order issued by the Bureau of Prisons to have [his] federal sentence run

concurrently to [his] state sentence.” That decision reflects a projected release

date of July 18, 2013.

       In September of 2009, Diaz filed the instant § 2254 petition challenging the


       3
          No motion was filed to alter Diaz’s federal sentence or to alert the federal district court
to the state’s newly devised sentence.
       4
          While in state custody, Diaz filed a motion under 28 U.S.C. § 2255 to vacate his federal
sentence. The district court denied that motion, and we declined to grant a Certificate of
Appealability on any claim. Because this court has not granted Diaz the right to file a successive
§ 2255 motion, see 28 U.S.C. § 2255(h), we cannot construe his current filing as one seeking
relief from his federal sentence.

                                                  4
constitutionality of his state convictions. The district court dismissed it because

Diaz had already satisfied his state sentence prior to the filing of his federal habeas

petition. The district court granted Diaz a Certificate of Appealability to permit

appeal of the dismissal of his petition, and Diaz timely appealed to this court.

      Whether a petitioner is “in custody pursuant to the judgment of a State

court” is a jurisdictional question, Unger v. Moore, 258 F.3d 1260, 1263 (11th Cir.

2001) (per curiam), and we review de novo a district court’s dismissal for lack of

jurisdiction, Bradley v. Pryor, 305 F.3d 1287, 1289 (11th Cir. 2002).

                                          II

      Federal district courts entertain petitions for habeas relief filed by a person

“in custody pursuant to the judgment of a State court only on the ground that he is

in custody in violation of the Constitution or laws or treaties of the United States.”

28 U.S.C. § 2254(a); see also id. § 2241(c) (authorizing federal courts to grant

habeas relief to a petitioner who is in custody illegally). A federal habeas

petitioner must be “‘in custody’ under the conviction or sentence under attack at

the time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490–91, 109 S. Ct.

1923, 1925 (1989) (per curiam). The issue before us is whether, at the time Diaz

filed his habeas petition, he was in custody pursuant to the state judgment that is

the subject of collateral attack. We conclude that he was not.

                                           5
       The record establishes that as of January 9, 2009, Diaz’s state sentence had

fully expired. He filed this § 2254 petition on September 30, 2009—well after his

transfer into the custody of the Federal Bureau of Prisons. Diaz argues that the

Supreme Court’s decision in Garlotte v. Fordice, 515 U.S. 39, 115 S. Ct. 1948

(1995), compels the conclusion that in September of 2009 he was still “in custody”

under his state sentence.5

       Garlotte reiterated the principle that we “‘very liberally construe[] the “in

custody” requirement for purposes of federal habeas.’” 515 U.S. at 45, 115 S. Ct.

at 1951 (quoting Cook, 490 U.S. at 492, 109 S. Ct. at 1926). It held that a

petitioner in state custody may challenge the first of multiple, consecutive

sentences imposed—even where the first sentence has already been

served—because the multiplicity of sentences represents “a continuous stream” of

custody under 28 U.S.C. § 2254(a). 515 U.S. at 41, 115 S. Ct. at 1949. Central to

the Court’s reasoning was that invalidation of the petitioner’s first conviction

“would advance the date of his eligibility for release from present incarceration.”

Id. at 47, 115 S. Ct. at 1952. Because a shortened term of incarceration implicated


       5
         Diaz argues in his reply brief that the district court had jurisdiction because he is
otherwise unable to obtain timely review of his constitutional claims. See Daniels v. United
States, 532 U.S. 374, 383–84, 121 S. Ct. 1578, 1584 (2001) (plurality opinion). However, by
only including this argument in his reply brief, he has waived it. See Conn. State Dental Ass’n v.
Anthem Health Plans, Inc., 591 F.3d 1337, 1351 n.11 (11th Cir. 2009).

                                                6
the core concerns of federal habeas review, the Court held that the petitioner could

challenge the first of two consecutive sentences, even though it had nominally

expired prior to the filing of his habeas petition. See id.

      Although we broadly construe the phrase “in custody,” that requirement has

not been extended to cover a scenario where a petitioner suffers no “present

restraint” from the conviction being challenged. See Cook, 490 U.S. at 492, 109 S.

Ct. at 1926. Thus, prior to Garlotte, the Supreme Court held that a petitioner was

not “in custody” for purposes of the federal habeas statute where his sentence had

expired and the prior conviction would “be used to enhance the sentences imposed

for any subsequent crimes of which he is convicted.” Id. Importantly, the Court

noted—and Garlotte did not suggest otherwise—that it has never held 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.” Id.

at 491, 109 S. Ct. at 1925.

      Construing the custody requirement liberally, we find that Diaz’s state

sentence had fully expired at the time he filed his § 2254 petition and therefore

deprived the district court of jurisdiction to decide the petition’s merits. Diaz is

not currently under any “present restraint” attributable to his state conviction.

Moreover, the “core purpose of habeas review” identified in Garlotte—the

                                           7
shortening of the overall term of incarceration—is not implicated in this scenario

where different sovereigns impose individual sentences and the petitioner

challenges the conviction for which the sentence has been fully satisfied. See

Brown v. Warden, Springfield Med. Ctr. for Fed. Prisoners, 315 F.3d 1268,

1269–70 & n.1 (10th Cir. 2003) (holding that the petitioner did not meet the

§ 2254(a) “in custody” requirement when he challenged an expired state

conviction that ran consecutively to his present federal incarceration); Allen v.

Oregon, 153 F.3d 1046, 1048 (9th Cir. 1998) (“Garlotte applies only when the

petitioner is still in the custody of the same sovereign responsible for the

challenged conviction.”). A federal court’s grant of habeas relief here would do

nothing to alter Diaz’s present term of federal incarceration because the federal

government is generally not required to credit any portion of a prisoner’s time

served in state custody. See Setser v. United States, 566 U.S. ___, 132 S. Ct.

1463, 1471 (2012) (“If a prisoner . . . starts in state custody, serves his state

sentence, and then moves to federal custody, it will always be the Federal

Government—whether the district court or the Bureau of Prisons—that decides

whether he will receive credit for the time served in state custody.”). Because

Diaz’s state sentence is fully expired and a grant of relief would not serve to

accelerate his release from federal confinement, we find that at the time of filing

                                            8
he was not “in custody pursuant to the judgment of a State court” within the

meaning of 28 U.S.C. § 2254(a).

       We are aware of the categorical language that other courts have used to

describe Garlotte. See, e.g., DeFoy v. McCullough, 393 F.3d 439, 442 (3d Cir.

2005) (“Garlotte allows us to review a completed sentence when the

prisoner . . . is still serving a sentence imposed by a different court at a different

time.”); Foster v. Booher, 296 F.3d 947, 950 (10th Cir. 2002) (“There is no

indication in the language of Garlotte that these principles are or should be limited

to the particular facts that the Court was faced with in that case.”). However,

neither DeFoy nor Foster is inconsistent with our conclusion here, as each

involved a situation where the petitioner was serving the latter of two sentences

imposed by the same sovereign—in each case different courts within the same

state.6 In DeFoy, the Third Circuit ruled that the “in custody” requirement was

satisfied where two different Pennsylvania state courts imposed consecutive

sentences of imprisonment at different times. As in Garlotte, a successful

collateral attack would alter the second sentence because the “effect of any error as

to the former [conviction] was to delay the start of the latter.” 393 F.3d at 442.


       6
         After Foster, the Tenth Circuit clarified that the broad language it previously used to
describe Garlotte was, indeed, not as broad as it may have appeared on paper. See Brown, 315
F.3d at 1270 n.1.

                                                9
Along those same lines, the Tenth Circuit in Foster held that, where different

courts within the same state impose consecutive sentences at different times, a

petitioner is in custody under 28 U.S.C. § 2254(a) for the entirety of his stream of

state incarceration. 296 F.3d at 949–52. Again, the court found noteworthy that

state law required credit for any time served in the event of relief and, thus, a

successful habeas petition could affect the term of incarceration. See id. at

950–51. And importantly, in each of these cases the petitioner was still in state

custody under some judgment of a state court, even though it was not the one

being collaterally attacked. See DeFoy, 393 F.3d at 441 (noting that petitioner

was serving a sentence for state sex offenses); Foster, 296 F.3d at 948 (describing

petitioner as serving a fifteen-year sentence imposed by a state court).

                                          III

      Because Diaz fully served his state sentence and is presently in custody of a

different sovereign, his relied-upon legal authority is uninstructive. Moreover,

this case does not present a situation where a habeas petitioner seeks to attack a

sentence yet to be served, e.g. Cook, 490 U.S. at 493, 109 S. Ct. at 1926

(permitting collateral attack on a yet-to-be-served conviction in another state), or

one in which a successful § 2254 petition would affect the current incarceration,

e.g. Garlotte, 515 U.S. at 47, 115 S. Ct. at 1952. As a result of the full satisfaction

                                          10
of the state court judgment, Diaz has been transferred to the sole custody of the

Federal Bureau of Prisons to serve the remainder of his sentence. He is thus no

longer in custody pursuant to any judgment of a state court, and the district court

properly dismissed the petition.

      AFFIRMED.




                                         11
