                                                        [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________           FILED
                                                U.S. COURT OF APPEALS
                             No. 10-11478         ELEVENTH CIRCUIT
                         Non-Argument Calendar       AUGUST 1, 2011
                       ________________________        JOHN LEY
                                                        CLERK
                  D.C. Docket No. 2:09-cv-00105-KD-N

MICHAEL J. GREEN,

                                                         Petitioner-Appellant,

                                  versus

CHERYL PRICE,
ATTORNEY GENERAL, STATE OF ALABAMA,

                                                      Respondents-Appellees.


                      ________________________

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

                             (August 1, 2011)

Before HULL, WILSON and BLACK, Circuit Judges.

PER CURIAM:
      Michael J. Green, an Alabama state prisoner, appeals the dismissal of his

pro se 28 U.S.C. § 2254 petition for writ of habeas corpus as barred by 28 U.S.C.

§ 2244(d)’s one-year statute of limitations. After review, we vacate and remand

for further proceedings.

                           I. BACKGROUND FACTS

A.    Green’s State Felony Conviction

      In September 2004, Green was convicted of felony first degree sexual abuse

in the Dallas County, Alabama Circuit Court. Green received a ten-year

suspended imprisonment sentence and a split sentence of three years’ probation

and eighteen months of weekend sanctions in the county jail.

      On July 31, 2006, while Green was on probation for the 2004 sexual abuse

conviction, City of Selma police officers responded to a report that Green was

involved in an incident involving a child at a local service station. Green was

questioned, but not arrested. The same day, the child’s mother filed a criminal

complaint in the Municipal Court of Selma charging Green with sexual

misconduct in violation of Alabama Code § 13A-6-65. The complaint alleged that

Green, while standing at the cash register, lifted the child’s dress and “felt on her

bottom.”

B.    Green’s Revoked Probation

                                           2
      On August 14, 2006, the state probation officer filed a delinquency report

with the Dallas County Circuit Court recommending revocation of Green’s

probation and reinstatement of the original suspended ten-year sentence for the

2004 sexual abuse conviction. The recommendation was based on multiple

alleged violations of the conditions of Green’s probation, including his recent

sexual misconduct charge.

      On August 18, 2006, Green was arrested on the new sexual misconduct

charge and pled not guilty. On August 29, 2006, following a bench trial in

Selma’s Municipal Court, Green was convicted of misdemeanor sexual abuse in

the second degree, in violation of Alabama Code § 13A-6-67(b) (the

“misdemeanor conviction”). Green did not file a direct appeal of the misdemeanor

conviction.

      On September 21, 2006, the Dallas County Circuit Court held a probation

revocation hearing on the 2004 felony sexual abuse conviction. The state argued

primarily that Green’s 2006 misdemeanor conviction violated the conditions of

Green’s felony probation. The state argued that this was Green’s second sexual

offense involving children, he “keeps molesting kids,” and “[h]e needs to go to

prison.”




                                         3
        Green, through counsel, asserted that (1) the misdemeanor conviction

resulted in a $300 fine that was satisfied by the ten days of time-served; (2) the

misdemeanor conviction was improperly imposed because, inter alia, Green was

not represented by counsel; and (3) Green had substantially complied with his

probation conditions. The state responded that Green was not entitled to counsel

because no jail time was imposed.

        During the revocation hearing, Green submitted copies of pay stubs as proof

of employment and documentation showing that he had paid court costs, registered

as a sex offender and completed his 300 hours of community service. Green

testified that (1) he missed one probation appointment, but served additional

sanction jail time for that, and (2) he was slow to complete his community service

hours because he maintained full-time employment and served jail time on the

weekends. As to his misdemeanor conviction, Green testified that he was

originally charged with sexual misconduct, but the charge “was amended down to

a misdemeanor.” Green said that he pled not guilty to the misdemeanor charge

because he was innocent and that he testified at the bench trial on his own behalf.

Green explained that he did not have counsel to advise him and that he did not

appeal the misdemeanor conviction because he had already served the ten days in

jail.

                                          4
      Green’s state probation officer testified that Green had a history of

noncompliance with the conditions of probation over the two years of probation,

but admitted that Green’s worst noncompliance was his new sexual abuse

conviction.

      The Circuit Court revoked Green’s probation and ordered him to serve the

original ten-year sentence for the 2004 felony sexual abuse conviction with credit

for time served. The Circuit Court found that Green had “substantially failed to

comply with the terms and conditions of probation.” The Circuit Court stated that

it was “seriously alarmed at the latest charges, particularly with the young lady in

city court,” noting that Green had minimized the offense by calling it a lesser

offense, but “[i]t still means that you did, in fact, commit the charge.” Green did

not file a direct appeal of the order revoking his probation and reinstating his ten-

year sentence.

C.    Green’s Rule 32 Petition Regarding the Felony Conviction

      On September 24, 2007, Green filed a pro se petition for relief from the ten-

year sentence, pursuant to Alabama Rule of Criminal Procedure 32. On November

6, 2007, the Circuit Court denied Green’s Rule 32 petition. The Circuit Court’s

order stated that Green’s Rule 32 petition was denied based on findings “that the

Petitioner received sufficient legal counsel,” “that this court had proper

                                          5
jurisdiction of the matter,” and “that the petitioner is not being held in custody in

excess of his sentence.” On December 14, 2007, Green appealed to the Alabama

Court of Criminal Appeals. The record does not reflect the disposition of Green’s

appeal or whether Green attempted to appeal to the Alabama Supreme Court.

D.     Green’s § 2254 Petition

       On February 23, 2009, while Green was still serving his reinstated ten-year

sentence on the 2004 Circuit Court felony sexual abuse conviction, Green filed

this pro se § 2254 petition attacking the 2006 misdemeanor conviction.1 Green’s

§ 2254 petition alleged, inter alia, that (1) his 2006 misdemeanor conviction was

invalid because he was denied the right to counsel and (2) the 2006 misdemeanor

conviction was used to enhance his current, ten-year sentence on the felony

conviction. According to Green’s § 2254 petition, on May 10, 2007, Green filed a

Rule 32 petition in the City of Selma’s Municipal Court. The Municipal Court

denied Green’s Rule 32 petition.2

       The state’s answer asserted that Green’s § 2254 petition was barred by the

one-year statue of limitations under 28 U.S.C. § 2244(d) and that Green did not


       1
           After filing his § 2254 petition, Green was released from prison.
       2
         Green attempted to appeal the denial of that Rule 32 petition. When the Municipal Court
failed to process his notice of appeal, Green filed a series of state mandamus petitions, the last of
which was denied by the Alabama Supreme Court on December 4, 2008.

                                                   6
meet the “in custody” requirement for habeas relief. The state argued that: (1)

§ 2244(d)(1)’s one-year limitations period began running on September 12, 2006,

when the fourteen-day period for seeking direct review of Green’s misdemeanor

conviction expired; (2) after 241 days, on May 10, 2007, Green filed his Rule 32

petition challenging his misdemeanor conviction, tolling the limitations period

until February 27, 2008, when the fourteen-day period for filing an appeal of the

denial of the Rule 32 petition expired; and (3) another 362 days passed before

Green filed his § 2254 petition on February 23, 2009, for a total of 602 days, well

beyond the one-year limitations period.

       The district court construed the state’s answer as a motion to dismiss and

directed Green to respond. Green’s response argued, inter alia, that he was

entitled to equitable tolling because he had diligently pursued his Rule 32 petition

attacking his misdemeanor conviction. Green argued that the tolling period did

not end on February 27, 2008 as the state suggested, but rather continued while

Green attempted to appeal the denial of his Rule 32 petition and pursued several

state mandamus petitions, the last of which was finally resolved by the Alabama

Supreme Court on December 4, 2008.3



       3
        Under Green’s theory, if the limitations period was tolled until December 4, 2008, only
eighty additional days had elapsed when Green filed his § 2254 petition.

                                               7
      A magistrate judge issued a report and recommendation (“R&R”)

concluding that Green’s § 2254 petition was untimely. In calculating the one-year

limitation’s period, the R&R used the date the misdemeanor conviction became

final. The R&R determined that the one-year limitations period was tolled while

Green’s Rule 32 petition challenging the Municipal Court misdemeanor

conviction was pending, but that Green was not entitled to tolling while he

pursued his state mandamus petitions.

      The R&R suggested that, even if Green’s § 2254 petition was timely, it was

likely Green could not satisfy the “in custody” requirement. The R&R concluded

that there was no evidence that Green’s misdemeanor conviction was used to

enhance his current ten-year sentence given that Green’s revocation was based on

multiple probation violations.

      Over Green’s objection, the district court adopted the R&R with one

modification, that the one-year limitations period began to run on February 14,

2008, immediately after the denial of Green’s Rule 32 petition challenging his

misdemeanor conviction. Thus, the district court dismissed Green’s § 2254

petition as time-barred.

      Green filed this appeal. This Court granted a certificate of appealability and

appointed appellate counsel for Green.

                                         8
                                      II. DISCUSSION

A.    In Custody

      Because we are obliged to inquire into subject matter jurisdiction sua sponte

whenever it may be lacking, we must address the threshold issue of whether Green

was “in custody” within the meaning of 28 U.S.C. § 2254 when he filed his

petition. See Williams v. Chatman, 510 F.3d 1290, 1293 (11th Cir. 2007).4

      A district court has jurisdiction to entertain a § 2254 petition only if the

petitioner is “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). The “in custody” requirement means

“that the 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). Generally, if the petitioner’s state sentence has

fully expired, he does not meet the “in custody” requirement. Id. at 492, 109 S. Ct.

at 1926. However, when the § 2254 petition can be construed as asserting a

challenge to the current state sentence that was enhanced by an allegedly invalid

prior state conviction, the petitioner is “in custody” for purposes of federal habeas

jurisdiction. Id. at 493-94, 109 S. Ct. at 1926-27; see also Lackawanna Cnty. Dist

      4
          We review de novo questions concerning jurisdiction. Williams, 510 F.3d at 1293.

                                                9
Att’y v. Coss, 532 U.S. 394, 399-402, 121 S. Ct. 1567, 1571-73 (2001)

(concluding § 2254 petitioner satisfied “in custody” requirement because the

earlier state conviction he nominally sought to challenge had been used to

calculate his sentencing range for his later state conviction).

      Although such a § 2254 petitioner satisfies the “in custody” requirement,

the petitioner may not collaterally attack the prior expired state sentence unless the

petitioner alleges that the prior state conviction was obtained in violation of his

Sixth Amendment right to counsel announced in Gideon v. Wainwright, 372 U.S.

335, 83 S. Ct. 792 (1963). Lackawanna, 532 U.S. at 404, 121 S. Ct. at 1574.

Additionally, the § 2254 petitioner seeking relief under the Lackawanna exception

must satisfy the procedural prerequisites for relief. Id.

      Here, although Green’s pro se § 2254 petition primarily attacked his

misdemeanor conviction, it also referenced his current Circuit Court felony ten-

year sentence and expressly claimed that it was enhanced by the misdemeanor

conviction. The record indicates that the state prosecutor, the probation officer

and the Circuit Court all were particularly concerned about Green’s new

misdemeanor conviction and that Green’s probation was revoked, and his ten-year

sentence reinstated, in large part because of this new conviction. See McCoy v.

Wainwright, 804 F.2d 1196, 1197 n.1 (11th Cir. 1986) (stating that jurisdiction

                                          10
exists even if the earlier sentence has expired if there is “a positive and

demonstrable relationship between the prior convictions and [the petitioner’s]

present incarceration”).5 Thus, Green’s § 2254 petition also challenged his felony

ten-year sentence and thus satisfied the “in custody” requirement as to the felony

sentence. Furthermore, because Green’s § 2254 petition alleges that the

misdemeanor conviction was obtained in violation of his Sixth Amendment right

to counsel, it falls within the Lackawanna exception. Thus, the district court had

federal habeas jurisdiction to review Green’s § 2254 petition.

B.     Statute of Limitations for Felony Conviction

       The fact that Green’s § 2254 petition challenges his Circuit Court felony

ten-year sentence has implications for whether the petition was barred by the one-

year statute of limitations.

       The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)

imposes a one-year statute of limitations for filing a federal habeas corpus petition.

See 28 U.S.C. § 2244(d)(1). “[T]he writ and AEDPA, including its limitations


       5
         Although the Circuit Court found that Green committed multiple probation violations, it
appears Green’s new misdemeanor conviction was the primary basis for the probation revocation
and full reinstatement of Green’s suspended ten-year sentence. See Ala. Code § 15-22-54(d)
(giving the Alabama circuit court the discretion to revoke a defendant’s probation and reinstate
the full prior suspended sentence if he commits a new offense, but limiting the court’s ability to
do so for other violations unless it finds that no measure short of confinement will adequately
protect the community or will avoid depreciating the seriousness of the violation).

                                                11
provisions, are specifically focused on the judgment which holds the petitioner in

confinement.’” Ferreira v. Sec’y, Dep’t of Corrs., 494 F.3d 1286, 1293 (11th Cir.

2007). “[T]he judgment to which AEDPA refers is the underlying conviction and

most recent sentence that authorizes the petitioner’s current detention.” Id. at

1292 (emphasis added) (concluding that one-year period began to run from the

judgment entered upon resentencing rather than from the original judgment of

conviction and sentence).6

       Instead of focusing on the misdemeanor conviction, the district court should

have focused on the Circuit Court’s order revoking Green’s probation and its

reimposition of the ten-year sentence. The timeliness of Green’s § 2254 petition

must be evaluated based on when that Circuit Court judgment became final.

Furthermore, the current record is not sufficiently complete to make a final

determination as to timeliness because it contains only parts of the record related

to Green’s Rule 32 petition challenging the probation revocation and his ten-year

sentence. See 28 U.S.C. § 2244(d)(1)(A) (providing that the judgment does not

become final until “the conclusion of direct review or the expiration of the time for

seeking such review”).


       6
        We review de novo a district court’s order dismissing a federal habeas petition as
untimely, but we review the district court’s factual findings for clear error. Thompson v. Sec’y,
Dep’t of Corrs., 595 F.3d 1233, 1235 (11th Cir. 2010).

                                                12
      For these reasons, we vacate the district court’s order dismissing Green’s

§ 2254 petition and remand for further consideration of whether Green’s § 2254

petition was timely filed as to the Circuit Court’s September 21, 2006 order

revoking probation and reimposing the ten-year sentence. On remand, the parties

should be allowed to fully brief the statute of limitations issue with respect to the

Circuit Court’s order and to raise any other pertinent issues or defenses, including

exhaustion.

      VACATED and REMANDED.




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