[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FILED

F O R THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOV 20, 2006

THOMAS K. KAHN

N o . 06-11692

CLERK

N o n - A r g u m e n t Calendar

D . C. Docket No. 05-14297-CV-DLG

W A R R E N LAVELL JACKSON,

Petitioner-Appellant,

versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,

James McDonough,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Florida

(N o v em b er 20, 2006)

B efo re DUBINA, WILSON and PRYOR, Circuit Judges.

P E R CURIAM:

A p p ellan t Warren Lavell Jackson ("Jackson"), a federal prisoner proceeding p ro se, appeals the district court's denial of his pro se 28U.S.C. § 2254 petition for a writ of habeas corpus concerning his prior 1992 state conviction for cocaine p o s se ss io n which the district court construed as a motion to vacate, correct, or set asid e a sentence pursuant to 28U.S.C. § 2255. Jackson concedes that his prior state conviction and sentence had expired, but argues that he could still attack this co n v ictio n because it was used to enhance the federal sentence he is currently serv in g and because the prior expired conviction was allegedly obtained in v io latio n of his Sixth Amendment right to counsel. He bases his Sixth Amendment arg u m en t on the state trial court and his counsel's alleged failure to inform him of h is right to appointed counsel on appeal.

In a proceeding on a collateral attack, we review the district court's factual fin d in g s for clear error and legal issues de novo. Lynn v. United States, 365 F.3d 1 2 2 5 , 1232 (11th Cir. 2004) (§ 2255 context); LeCroy v. Sec'y, Florida Dept. of C o rr., 421 F.3d 1237, 1259 (11th Cir. 2005), cert. denied, 126 S. Ct. 1458 (2006) (§ 2254 context). We have held that "[p]ro se pleadings are held to a less stringent stan d ard than pleadings drafted by attorneys and will, therefore, be liberally c o n s tr u e d ." Trawinski v. United Techs., 313 F.3d 1295, 1297 (11th Cir. 2002) ( cita tio n omitted). D istrict courts have jurisdiction to entertain § 2254 habeas petitions only fro m petitioners who are "in custody in violation of the Constitution or laws or treaties of the United States." 28U.S.C. § 2241(c)(3); see also Means v. Alabama, 2 0 9 F.3d 1241, 1242 (11th Cir. 2000). When a prisoner's sentence has fully e x p ir ed , he is not "in custody" as required by § 2241, and the mere possibility that th e prior conviction will be used to enhance a sentence imposed for any subsequent c rim e s is not enough to render him "in custody." Maleng v. Cook, 490 U.S. 488, 4 9 2 , 109 S. Ct. 1923, 1926, 104 L. Ed. 2d 540 (1989). The Supreme Court has ack n o w led g ed , however, that when a § 2254 petition could be read as asserting a ch allen g e to a present sentence that actually was enhanced by the allegedly invalid p r io r conviction, the prisoner is "in custody" for purposes of federal habeas ju risd ictio n . Id. at 493-94, 109 S. Ct. at 1926-27; see also Lackawanna County D ist. Att'y v. Coss, 532 U.S. 394, 402, 121 S. Ct. 1567, 1573, 149 L. Ed. 2d 608 (2 0 0 1 ) (petitioner found to be "in custody" for § 2254 purposes because he ch allen g ed an allegedly invalid expired conviction and sentence as enhancing his cu rren t sentence).

Even though a prisoner may be "in custody" under these circumstances, the fact that a prior conviction was used to enhance a present sentence does not entitle th e prisoner to challenge the prior conviction. In Daniels v. United States, 5 3 2 U.S. 374, 382, 121 S. Ct. 1578, 1583, 149 L. Ed. 2d 590 (2001), the Supreme C o u rt held that if "a prior conviction used to enhance a federal sentence is no lo n g er open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant d id so unsuccessfully)," a movant's § 2255 motion challenging the prior conviction w ill fail because the presumption of validity that attached to the prior conviction at th e time of sentencing is conclusive. The Court held that a defendant generally is n o t entitled to collaterally attack his prior conviction through a motion under § 2 2 5 5 unless he alleges that the conviction was obtained in violation of the right to co u n sel announced in Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed.

2 d 799 (1963). Daniels, 532 U.S. at 382, 121 S. Ct. at 1583.

In Lackawanna, the Court extended the holding in Daniels to petitioners ch allen g in g expired state sentences under § 2254. Lackawanna, 532 U.S. at 3 9 6 -9 7 , 121 S. Ct. at 1570. Lackawanna also provided an exception for attacking a prior expired state sentence when such prior conviction had been obtained w ith o u t the benefit of counsel in violation of Gideon. Id. at 404, 121 S. Ct. at 1 5 7 4 . However, as with any § 2254 petition, a petitioner seeking relief under this ex cep tio n must satisfy the procedural prerequisites for relief. Id.

In Gideon, the Supreme Court held that a state court's refusal to appoint trial co u n sel, upon request, for an indigent defendant accused of a non-capital felony v io lated due process. Gideon, 372 U.S. at 343-45, 83 S. Ct. at 796-97. The right to counsel at trial flows from the explicit grant of this right in the Sixth A m en d m en t made applicable to the states through the Due Process Clause of the F o u rteen th Amendment. Id. at 339, 83 S. Ct. at 794. There is no constitutional rig h t to appeal. Ross v. Moffitt, 417 U.S. 600, 611, 94 S. Ct. 2437, 2444, 41 L. Ed.

2 d 341 (1974). However, if an appeal right is granted by statute, an indigent d efen d an t also has a right to appointed counsel in his first appeal as of right.

Douglas v. California, 372 U.S. 353, 357-58, 83 S. Ct. 814, 817, 9 L. Ed. 2d 811 (1 9 6 3 ) (holding that denial of indigent appellants' appeal without the benefit of co u n sel violated the Equal Protection Clause of the Fourteenth Amendment).

We have noted that the Daniels/Lackawanna exception is not implicated w h ere a defendant was represented by counsel during the proceedings related to his p rio r conviction underlying the expired sentence. See Hubbard v. Haley, 317 F.3d 1 2 4 5 , 1256 n.20 (11th Cir. 2003) (capital context where petitioner attempted to ex p an d his § 2254 petition to attack an expired conviction serving as the basis for ag g rav ated factor in sentencing order).

As an initial matter, we conclude from the record that Jackson met the "in cu sto d y" requirement. Here, Jackson brought the present § 2254 petition attacking a 1992 state conviction for cocaine possession and conceded that the sentence on th is conviction had expired. However, he explicitly alleged that this conviction w as used to enhance the federal life sentence he was currently serving. Thus, u n d e r Maleng, Jackson met § 2254's "in custody" requirement. See Maleng, 490 U .S . at 493-94, 109 S. Ct. at 1926-27.

Nevertheless, Jackson was not entitled to attack his expired conviction under th e Gideon exception articulated in Daniels and Lackawanna. From the record, it is clear that Jackson was represented by counsel during the trial court proceedings related to his prior expired state court conviction and sentence. See Hubbard, 3 1 7 F.3d at 1256 n.20. The state court also informed Jackson that he could appeal h is conviction and sentence and nothing in the record indicates that he requested co u n sel on appeal and was refused. Furthermore, though there is a right to a p p o in te d counsel on a defendant's first appeal as of right per Douglas, this is not th e exception articulated in Daniels and Lackawanna. Rather, Daniels and L a cka w a n n a speak only to Gideon-type violations. See Daniels, 532 U.S. at 382, 1 2 1 S. Ct. at 1583; Lackwanna, 532 U.S. at 404, 121 S. Ct. at 1574.

In any event, as the magistrate judge correctly noted and to which Jackson d id not object, Jackson was not entitled to attack his prior expired state conviction b e c au s e his petition was untimely. 28U.S.C. § 2244(d) (providing for a 1-year statu te of limitations for petitions for writ of habeas corpus); Nettles v. Wainwright, 6 7 7 F.2d 404, 409-10 (5th Cir. Unit B 1982) (failure to raise objections to the m a g is tr ate 's report and recommendation bars a party from attacking on appeal factu al findings adopted by the district court except upon grounds of plain error or m an ifest injustice). Jackson filed his petition more than a decade after his c o n v ic tio n . Thus, Jackson did not satisfy the procedural prerequisites for relief, w h ich is a necessary component of a collateral attack even when alleging a G id eo n -typ e violation. See Lackawanna, 532 U.S. at 404, 121 S. Ct. at 1574.

Accordingly, we affirm the district court's judgment denying Jackson's § 2255 m o tio n .

A F F IR M E D .