     Case: 16-20671    Document: 00514704031    Page: 1   Date Filed: 10/30/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 16-20671                United States Court of Appeals
                                                                      Fifth Circuit

                                                                    FILED
                                                             October 30, 2018
JAMES RUBIO,
                                                               Lyle W. Cayce
              Petitioner - Appellant                                Clerk


v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent - Appellee




              Appeal from the United States District Court for the
                          Southern District of Texas
                           USDC No. 4:14-CV-01126


Before ELROD, HIGGINSON, and ENGELHARDT, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      James Rubio appeals the dismissal of his petition for habeas corpus for
lack of jurisdiction. This court granted a certificate of appealability on the
narrow question of whether Rubio was “in custody” under the challenged state
court judgment. Because we hold that Rubio satisfies the custody requirement,
we reverse.
                                       I.
      Rubio is a Texas state prisoner. He is currently subject to two distinct
state court judgments: a civil commitment order and a criminal conviction. In
2011, Rubio was adjudged a sexually violent predator under the Texas Health
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                                    No. 16-20671
and Safety Code and civilly committed for an indefinite period of time. See TEX.
HEALTH & SAFETY CODE § 841.081. The commitment order required Rubio to
reside in supervised housing, submit to GPS tracking, and comply with
numerous other requirements. He later violated the conditions of the order and
absconded from his residential facility. In 2013, Rubio was convicted of a state
felony for failure to comply with sex offender registration requirements and
sentenced to ten years imprisonment.
      In his federal habeas petition, Rubio challenges only the 2011 civil
commitment order. Rubio’s petition notes that his civil commitment sentence
is indefinite. The district court sua sponte dismissed the petition for lack of
jurisdiction. The court reasoned that Rubio is currently imprisoned under the
2013 criminal judgment, not the 2011 civil commitment order, and is therefore
not “in custody” under the judgment he is attempting to challenge. See
28 U.S.C. §§ 2241(c)(3), 2254(a).
                                        II.
      We review de novo a district court’s dismissal for lack of jurisdiction.
Flores-Garza v. I.N.S., 328 F.3d 797, 803 (5th Cir. 2003). A habeas petitioner
may seek relief from a state court judgment only if he is “‘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 (1989) (discussing 28 U.S.C. §§ 2241(c)(3), 2254(a)).
This custody requirement can be satisfied by certain non-criminal judgments,
including civil commitment orders. Duncan v. Walker, 533 U.S. 167, 176
(2001); Francois v. Henderson, 850 F.2d 231, 232 (5th Cir. 1988). Texas does
not dispute that an order of civil commitment under Section 841.081 of the
Texas Health and Safety Code may be subject to habeas review. Rather, the
State argues that Rubio was not in custody under the civil commitment order
when he filed his habeas petition because he was, and still is, serving his
criminal sentence.
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                                       No. 16-20671
       Rubio contends that he is “in custody” under the civil commitment order
because the order is indefinite and he is subject to a detainer to ensure that he
returns to civil detention after the completion of his criminal sentence. He
offers letters from Texas’s civil commitment authority stating that the
conditions of his civil commitment remain “in full force.” Consistent with
Rubio’s representations, Texas law requires correctional facilities to notify the
civil commitment office and the relevant case manager upon the release of a
prisoner subject to a civil commitment order. See TEX. HEALTH & SAFETY CODE
§ 841.151(c). The State acknowledges that Rubio will return to custody under
the civil commitment order after he completes his criminal sentence.
       A prisoner serving consecutive sentences is considered to be “in custody”
under all of his sentences. Garlotte v. Fordice, 515 U.S. 39, 41 (1995); Peyton v.
Rowe, 391 U.S. 54, 67 (1968). This principle applies even if the sentences were
imposed by different authorities. See Maleng, 490 U.S. at 493 (holding that a
federal prisoner subject to a state detainer was “in custody” on his future state
sentences). We perceive no reason to treat a future civil commitment sentence
differently from a future criminal sentence. The State’s reliance on Stanbridge
v. Scott, 791 F.3d 715 (7th Cir. 2015), is misplaced because that case involved
a challenge to a past conviction for which the petitioner had already fully
served his sentence. 1 Id. at 717. Rubio, by contrast, remains subject to the civil
commitment order.
       Because it is undisputed that Rubio will be civilly committed upon the
completion of his criminal sentence, he was “in custody” under the civil
commitment order when he filed his § 2254 petition. Accordingly, we




       1 The Eighth Circuit’s decision in George v. Black, 732 F.2d 108 (8th Cir. 1984) is also
inapposite because that case involved the voluntariness of a guilty plea, not whether a habeas
petitioner was “in custody.”
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                              No. 16-20671
REVERSE and REMAND for the district court to consider his petition in the
first instance.




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