                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                       File Name: 18a0011p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 IN RE: MARCUS         DEANGELO     LEE, a.k.a. Marcus    ┐
 DeAngelo Jones,                                          │
                                                           >     No. 17-6038
                                               Movant.    │
                                                          ┘

                        On Motion to Authorize the Filing of a Second or
                        Successive Application for Habeas Corpus Relief.
         United States District Court for the Western District of Tennessee at Memphis.
                    No. 2:16-cv-02932—Sheryl H. Lipman, District Judge.
                                                .
                              Decided and Filed: January 17, 2018

             Before: McKEAGUE, KETHLEDGE, and THAPAR, Circuit Judges.
                               _________________

                                           LITIGANT

ON MOTIONS: Marcus DeAngelo Lee, Springfield, Missouri, pro se.
                                      _________________

                                             ORDER
                                      _________________

       PER CURIAM. Marcus DeAngelo Lee pleaded guilty to three crimes in Tennessee state
court, served his sentences, and was released from state custody in 1998. State v. Lee, No.
W2016-00107-CCA-R3-CD, 2017 WL 416292, at *1–2 (Tenn. Crim. App. Jan. 31, 2017).
Twenty years later and while serving time in federal prison for a subsequent crime, Lee asks this
court for permission to file a second § 2254 petition attacking his state convictions.         See
28 U.S.C. § 2244(b). He also moves to remand the action to the district court. But the federal
courts lack subject-matter jurisdiction over Lee’s petition regardless of whether he can meet
§ 2244(b)’s requirements, so we deny both motions. See Answers in Genesis of Ky., Inc. v.
Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009). Although we do not scrutinize
the statutory timeliness of a habeas petition at this stage, In re McDonald, 514 F.3d 539, 543 (6th
 No. 17-6038                               In re Lee                                     Page 2


Cir. 2008), we can—and must—determine whether we have subject-matter jurisdiction over a
case before proceeding at all. Answers in Genesis, 556 F.3d at 465 (“[F]ederal courts have a duty
to consider their subject matter jurisdiction in regard to every case and may raise the issue sua
sponte.”).

       The statute that authorizes district courts to entertain state prisoners’ habeas petitions
expressly limits their jurisdiction to petitions filed by persons “in custody pursuant to the
judgment of a State court.” 28 U.S.C. § 2254(a). Thus, a district court may consider a prisoner’s
petition only if he files it while “‘in custody’ under the conviction or sentence under attack.”
Maleng v. Cook, 490 U.S. 488, 490–91 (1989) (per curiam). Lee is no longer in custody
pursuant to the state judgment he seeks to attack because the sentences for his state convictions
expired in 1998, including any term of parole or supervised release those convictions imposed.
Lee, 2017 WL 416292, at *2; see Maleng, 490 U.S. at 491 (explaining that a habeas petitioner is
not “in custody” when the sentence for the challenged conviction “has fully expired” (emphasis
omitted)); In re Stansell, 828 F.3d 412, 416 (6th Cir. 2016) (explaining that post-release
restraints such as probation can count as “custody” under the habeas statutes).

       Moreover, that Lee’s state convictions resulted in an enhanced federal sentence does not
affect our custody analysis. The Supreme Court has made clear that a petitioner is not “in
custody” under a conviction “whose sentence has fully expired at the time his petition is filed,”
even if “that conviction has been used to enhance the length of a current or future sentence
imposed for a subsequent conviction.” Maleng, 490 U.S. at 491; see also Steverson v. Summers,
258 F.3d 520, 522–23 (6th Cir. 2001). If Lee wishes to pursue collateral relief, he is limited to
challenging his federal conviction and sentence. See Maleng, 490 U.S. at 492–93.

       Accordingly, we DISMISS Lee’s motion for an order authorizing a second or successive
§ 2254 petition. We also DENY Lee’s other pending motion as moot.

                                             ENTERED BY ORDER OF THE COURT



                                             Deborah S. Hunt, Clerk
