           Case: 15-15609    Date Filed: 11/29/2017   Page: 1 of 5


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-15609
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 8:15-cv-02084-VMC-EAJ



JOHN DAVID WILSON, JR.,

                                                           Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                        Respondents-Appellees.

                      ________________________

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

                            (November 29, 2017)



Before JULIE CARNES, JILL PRYOR, and EDMONDSON, Circuit Judges.
              Case: 15-15609     Date Filed: 11/29/2017    Page: 2 of 5


PER CURIAM:



      John David Wilson, Jr. -- a Florida prisoner here proceeding pro se --

appeals the district court’s order dismissing his pro se motion, which the district

court construed as a petition for habeas relief, filed pursuant to 28 U.S.C. § 2254.

No reversible error has been shown; we affirm.

      The procedural history pertinent to this appeal involves two state court

criminal proceedings. In state case No. 99-18481, Wilson pleaded guilty to

aggravated stalking; he was sentenced to five years’ community control.

      In state case No. 00-12480, Wilson was convicted of attempted first-degree

murder and of aggravated battery. In October 2001, the state court sentenced

Wilson to life imprisonment for each of his two convictions, to run concurrently.

On the same day, the state court revoked Wilson’s probation in case No. 99-18481.

Wilson was then sentenced in No. 99-18481 to 60 months’ imprisonment, to run

concurrently with the life sentences imposed in case No. 00-12480.

      In 2007, Wilson filed a pro se 28 U.S.C. § 2254 petition, seeking relief from

his convictions and concurrent life sentences in case No. 00-12480. In reviewing

Wilson’s 2007 petition, the district court noted expressly that Wilson raised no

challenge to his conviction in case No. 99-18481. The district court denied




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Wilson’s section 2254 petition. This Court then denied Wilson a certificate of

appealability.

      In 2015, Wilson filed the pro se motion now at issue in this appeal. In his

motion -- which Wilson purported to file pursuant to Fed. R. Civ. P. 60(b) --

Wilson sought relief from his conviction and 60-month sentence in case No. 99-

18481. The district court construed Wilson’s motion as a second or successive

section 2254 petition. Because Wilson had received no authorization to file a

second or successive habeas petition from this Court, the district court dismissed

without prejudice the petition for lack of jurisdiction.

      We review de novo questions about the district court’s jurisdiction.

Zakrzewski v. McDonough, 490 F.3d 1264, 1267 (11th Cir. 2007). When

reviewing a motion filed by a pro se prisoner, we look behind the label of the

motion to determine whether the motion is cognizable under a different remedial

statutory framework. Gooden v. United States, 627 F.3d 846, 847 (11th Cir.

2010).

      In his motion, Wilson sought to challenge the validity of his state conviction

for aggravated assault. Rule 60(b), however, is a rule of civil procedure and

provides no relief from a criminal judgment. See United States v. Mosavi, 138

F.3d 1365, 1366 (11th Cir. 1998). The district court thus construed properly

Wilson’s motion as a section 2254 petition for habeas relief. See Muhammad v.


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Close, 540 U.S. 749, 750 (2004) (“Challenges to the validity of any confinement or

to particulars affecting its duration are the province of habeas corpus”).

      The government concedes -- and we agree -- that Wilson’s petition is not

“second or successive.” In his 2007 habeas petition, Wilson challenged only his

conviction and sentences in case No. 00-12480. Because the section 2254 petition

at issue in this appeal is Wilson’s first collateral attack on his conviction in case

No. 99-18481, the petition is not subject to the limitation on “second or

successive” petitions.

      Wilson’s petition is still subject to dismissal, however, because Wilson has

failed to satisfy the “in custody” requirement of 28 U.S.C. § 2241(c)(3). District

courts have jurisdiction over petitions for habeas relief only when the habeas

petitioner -- at the time his petition is filed -- is “in custody” under the conviction

or sentence he seeks to challenge. Maleng v. Cook, 490 U.S. 488, 491-92 (1989)

(interpreting the language in 28 U.S.C. § 2241(c)(3)). Once the sentence for a

conviction has fully expired, the petitioner is no longer “in custody” for purposes

of challenging that conviction. Id. at 491.

      Here, Wilson began serving his 60-month sentence in case No. 99-18481 in

October 2001. When Wilson filed his construed section 2254 petition in 2015, his

60-month sentence had long since expired. Thus, Wilson was no longer “in




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custody” for purposes of challenging his conviction for aggravated stalking. See

id.

      On appeal, Wilson argues that he satisfied the “in custody” requirement

because he is still serving a life sentence for his attempted murder conviction in

case No. 00-12480, which he contends is “positively and demonstrably related” to

his conviction in case No. 99-18481. Briefly stated, Wilson says he was compelled

to commit attempted murder after discovering that his plea in case No. 99-18481

was fraudulently obtained. We reject this argument. The relationship between

Wilson’s plea for aggravated stalking and his incarceration for attempted murder is

simply “too speculative and remote” to satisfy the statutory “in custody”

requirement. For background, see Van Zant v. Fla. Parole Comm’n, 104 F.3d 325,

327-28 (11th Cir. 1997), and Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir.

1979).

      Because Wilson has failed to satisfy the statutory “in custody” requirement,

the district court lacked jurisdiction to entertain Wilson’s section 2254 habeas

petition. We affirm the dismissal.

      AFFIRMED.




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