            Case: 13-14661     Date Filed: 08/11/2014   Page: 1 of 8




                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 13-14661
                           Non-Argument Calendar
                         ________________________

                     D.C. Docket No. 0:13-cv-60625-RNS



RAFAEL LLOVERA,

                                                         Petitioner-Appellant,

                                     versus

STATE OF FLORIDA,

                                                         Respondent-Appellee.

                         ________________________

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

                               (August 11, 2014)

Before TJOFLAT, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

     Rafael A. Llovera, a released state prisoner proceeding pro se, appeals the
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denial of his motion for a preliminary injunction in his habeas corpus and coram

nobis action.

      In March 2013, Llovera filed pro se what was construed as an emergency

petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, against the State

of Florida. Later that month, Llovera filed an an “Addendum To Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2241, or 28 U.S.C. § 2244, or 28 U.S.C. §

2254 or Exceptional Writ of Certiorari under All Writs Act[,] 28 U.S.C. § 1651,”

raising: (1) various challenges to his state convictions and sentences; and (2) a

claim of ineffective assistance of counsel based on his trial counsel’s failure to

challenge his unlawful arrest. In April 2013, Llovera moved to voluntarily strike

his original emergency habeas petition, and asked the district court to limit its

review to the addendum. Llovera’s motion was granted and a magistrate judge

instructed the State to respond solely to the addendum.

      A review of the State’s response reveals that, in 2005, Llovera pleaded no

contest to one count of aggravated fleeing and eluding an officer, and one count of

felony driving under the influence. Based on his pleas, he was sentenced to a total

of five years’ imprisonment in 2007. On his own admission, Llovera was later

released from state custody in August 2010.

      Given that he was no longer in state custody, the State argued that the

petition should be dismissed for lack of jurisdiction. In June 2013, Llovera filed


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another addendum, making additional arguments for habeas relief. Llovera also

filed a motion to expedite the handling of his case, on the basis that he had been

detained by Immigration and Customs Enforcement (ICE) since 2010, which the

magistrate judge later summarily denied, noting that the case would be reviewed in

turn.

        In August 2013, Llovera filed a “motion for preliminary injunction” in the

district court. Llovera first requested that the district court compel the Office of

the U.S. Attorney General or the Florida Department of Law Enforcement to

initiate a criminal investigation against officers for a 2005 shooting. On August 5,

2005, after evading police by motor vehicle, Llovera was shot in the abdomen by a

sheriff in the Broward County Sheriff’s Office (BCSO). He was subsequently

arrested and convicted of several crimes in state court.

        Llovera’s motion further requested that the court or some other federal or

state law enforcement official certify his petition or application for a U-Visa

because, as an alien who was a victim of a “qualifying crime,” he was willing to

cooperate with law enforcement in the investigation or prosecution of his wrongful

shooting.

        The district court denied the motion for a preliminary injunction,

determining that Llovera failed to meet the requirements for granting preliminary

relief. The magistrate judge stated that Llovera had previously challenged the


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denial of his motion for U-Visa status in 2011, pursuant to a petition for writ of

error coram nobis, which the district court dismissed for lack of jurisdiction, noting

that Llovera had neither a constitutional nor a statutory right to either a status

certification or to a U-Visa itself. Taking judicial notice of the district court’s prior

determinations regarding Llovera’s U-Visa status, the magistrate judge concluded

that the instant claim was similarly without merit.

      The magistrate judge further stated that Llovera had also previously asserted

several claims against the BCSO officers in relation to his 2005 shooting, pursuant

to a 2012 emergency petition for writ of habeas corpus, 28 U.S.C. § 2254, or

petition for a writ of error coram nobis to vacate his state sentences. In that case,

the district court denied the claims in an order entered on July 23, 2012.

Specifically, the court concluded that coram nobis relief was unavailable because

Llovera was not challenging federal convictions. Habeas relief was unavailable

under 28 U.S.C. § 2254 because the petition was both time-barred and procedurally

barred, given that Llovera was no longer in state custody. Accordingly, the

magistrate judge here determined that, in light of the district court’s prior rulings

surrounding the 2005 shooting, and the fact that the decision to initiate any

investigation against the officers rested with the Federal Bureau of Investigations

(FBI), Llovera was not entitled to injunctive relief on that claim. Although

instructed to do so by the magistrate judge, Llovera did not file any objections to


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the Report and Recommendation (R&R). After the notice of appeal was filed,

Llovera continued to litigate the case before the district court, including submitting

a third addendum to his habeas corpus or coram nobis petition.

      Now on appeal, Llovera reiterates his requests for relief, asserting that the

district court’s decision was against the weight of the evidence. Upon review of

the record and consideration of Llovera’s brief, we affirm. 1

      We generally review the denial of a preliminary injunction for abuse of

discretion, reviewing the court’s factual findings for clear error and its legal

conclusions de novo. Scott v. Roberts, 612 F.3d 1279, 1289–90 (11th Cir. 2010).

      We consider four factors to determine if preliminary relief is warranted:

      (1) whether there is a substantial likelihood that the party applying for
      preliminary relief will succeed later on the merits; (2) whether the
      applicant will suffer an irreparable injury absent preliminary relief; (3)
      whether the harm that the applicant will likely suffer outweighs any
      harm that its opponent will suffer as a result of an injunction; and (4)
      whether preliminary relief would disserve the public interest.

Scott, 612 F.3d at 1290. A preliminary injunction, moreover, “is an extraordinary

and drastic remedy not to be granted unless the movant clearly establishes the

burden of persuasion as to the four requisites.” Forsyth Cnty. v. U.S. Army Corps

of Eng’rs, 633 F.3d 1032, 1039 (11th Cir. 2011) (internal quotation marks

omitted).

      Here, the district court did not abuse its discretion in denying Llovera’s

      1
          The state has not filed a brief in this appeal.
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motion for a preliminary injunction because Llovera failed to show a substantial

likelihood of success on the merits. See Scott, 612 F.3d at 1290. Preliminarily, the

district court had already denied, dismissed, or rendered meritless the same or

similar claims relating to Llovera’s 2005 shooting and U-Visa status or

certification in his prior actions for habeas corpus and coram nobis relief.

Moreover, those prayers for injunctive relief had no logical relationship to the

substantive habeas and coram nobis claims in this lawsuit, and the district court did

not abuse its discretion in failing to rewrite Llovera’s claims for him. Indeed,

Llovera sought relief against officials who were not named or served as parties to

the proceeding. Accordingly, the district court is affirmed as to this issue.

      Although this case is before us on an appeal from a denial of a motion for a

preliminary injunction, we will address the merits of Llovera’s case. “As a

general rule, when an appeal is taken from the grant or denial of a preliminary

injunction, the reviewing court will go no further into the merits than is necessary

to decide the interlocutory appeal.” Callaway v. Block, 763 F.2d 1283, 1287 n.6

(11th Cir. 1985). However, 28 U.S.C. “[§] 1292(a)(1) . . . grants the courts

jurisdiction to reach the merits, at least where there are no relevant facts at issue

and the matters to be decided are closely related to the interlocutory order being

appealed.” Id. This court may review the underlying merits on an appeal from an

order granting or denying a preliminary injunction where the “district court’s


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ruling rests solely on a premise as to the applicable rule of law, and the facts are

established or of no controlling relevance.” Solantic, LLC v. City of Neptune

Beach, 410 F.3d 1250, 1274 (11th Cir. 2005) (internal quotation marks omitted).

       The facts of this case are simple and straightforward, and the record needs

no expansion. Llovera is ineligible for coram nobis relief. A writ of error coram

nobis is available to vacate a conviction after the petitioner has served his sentence.

United States v. Peter, 310 F.3d 709, 712 (11th Cir. 2002) (per curiam). However,

coram nobis is not available in federal courts as a means to attack state criminal

judgments. Theriault v. Mississippi, 390 F.2d 657, 657 (5th Cir. 1968) (per

curiam); see also Cavett v. Ellis, 578 F.2d 567, 569 n.4 (5th Cir. 1978) (noting that

the writ of coram nobis is “unavailable to review state court decisions”). 2 Llovera

seeks to challenge state, not federal, convictions in the instant petition.

Accordingly, he is ineligible for coram nobis relief. See Theriault, 390 F.2d at

657.

       Likewise, § 2254 does not provide an avenue for relief. In order to bring a

habeas action, the petitioner must be “in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3); Maleng v. Cook,

490 U.S. 488, 490–92, 109 S. Ct. 1923, 1925–26 (1989). This “in custody”


       2
         This Court, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
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requirement is jurisdictional. Stacey v. Warden, Apalachee Corr. Inst., 854 F.2d

401, 403 (11th Cir. 1988). The Supreme Court has interpreted § 2241 as requiring

a habeas petitioner to be “in custody” under the conviction or sentence he seeks to

attack at the time his petition is filed. Carafas v. LaVallee, 391 U.S. 234, 238, 88

S. Ct. 1556, 1560 (1968). When a prisoner’s sentence has fully expired, he is not

“in custody” as required by § 2241, and the mere possibility that the prior

conviction will be used to enhance a sentence imposed for any subsequent crimes

is not enough to render him “in custody.” Maleng, 490 U.S. at 492, 109 S. Ct. at

1926. Because Llovera is no longer in custody for purposes of federal habeas

relief, his claim fails. See Maleng, 490 U.S. at 492, 109 S. Ct. at 1926; Carafas,

391 U.S. at 238, 88 S. Ct. at 1560.

       Because he necessarily cannot prevail on the merits in his underlying action,

Llovera has also failed to meet his burden to show preliminary injunctive relief

was warranted in his case.3 In any event, the district court did not abuse its

discretion in failing to grant unjustified injunctive relief against non-parties.

Therefore, we affirm the district court’s denial of Llovera’s motion for a

preliminary injunction.

       AFFIRMED.



       3
         Because Llovera has failed to show a substantial likelihood of success on the merits, we
need not address whether he met the three remaining requisites for preliminary relief.
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