791 F.2d 931 (6th Cir. 1986), 85-1164, Buchanan v. Attorney General of Michigan

Docket Nº:85-1164
Citation:791 F.2d 931
Party Name:EARL MILES BUCHANAN, Petitioner-Appellant, v. ATTORNEY GENERAL OF MICHIGAN; SECRETARY OF MICHIGAN CORRECTION COMMISSION; GENE A. SCROGGY, Respondents-Appellees.
Case Date:April 15, 1986
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 931

791 F.2d 931 (6th Cir. 1986)

EARL MILES BUCHANAN, Petitioner-Appellant,

v.

ATTORNEY GENERAL OF MICHIGAN; SECRETARY OF MICHIGAN CORRECTION COMMISSION; GENE A. SCROGGY, Respondents-Appellees.

No. 85-1164

United States Court of Appeals, Sixth Circuit

April 15, 1986

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

AFFIRMED

W.D.Mich.

ORDER

BEFORE: LIVELY, Chief Judge, MERRITT and JONES, Circuit Judges.

Petitioner appeals the order dismissing his habeas corpus petition brought under 28 U.S.C. § 2254. The case has been referred to a panel of the Court pursuant to Sixth Circuit Rule 9(a). Upon examination of the briefs and the record, the panel agrees unanimously that oral argument in not needed. Rule 34(a), Federal Rules of Appellate Procedure.

Petitioner is a Kentucky prisoner convicted in 1981 and serving a twenty year sentence for receiving stolen property and being a persistent felony offender. Petitioner filed this habeas corpus petition on September 4, 1984, in the Western District of Michigan challenging the constitutionality of prior Michigan assault and robbery convictions that were the basis of his Kentucky persistent felony offender conviction. Petitioner had fully served the Michigan sentences. The district court dismissed the petition for lack of jurisdiction on the grounds that petitioner could not challenge the prior Michigan convictions in a Michigan federal court when he was presently incarcerated in Kentucky on a Kentucky conviction. We affirm.

28 U.S.C. § 2254(a) requires that a habeas corpus petitioner be in custody under a state court judgment when the habeas corpus petition is filed. Carafas v. LaVallee, 391 U.S. 234 (1968). Petitioner is incarcerated under a 1981 Kentucky conviction. The Michigan sentences have expired and petitioner is not in the custody of Michigan officials. When the petitioner challenges a sentence that has already been served and is in custody of another state serving a sentence imposed by that state, he is not 'in custody' of the first state for purposes of bringing a habeas corpus action. Ward v...

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