Crank v. Duckworth, 89-3626

Decision Date25 June 1990
Docket NumberNo. 89-3626,89-3626
Citation905 F.2d 1090
PartiesWilliam E. CRANK, Petitioner-Appellant, v. Jack R. DUCKWORTH, Warden, and the Attorney General of Indiana, Respondents-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Candice A. Lichtenfels, South Bend, Ind., for petitioner-appellant.

Sheila M. Flynn, Asst. Atty. Gen., Indianapolis, Ind., for respondents-appellees.

Before CUMMINGS, COFFEY and EASTERBROOK, Circuit Judges.

EASTERBROOK, Circuit Judge.

Statutes that impose stiff penalties on habitual offenders give new weight to old convictions. Because custody directly under these old convictions has ended, 28 U.S.C. Sec. 2254 does not authorize a petition for a writ of habeas corpus seeking release; you can't be released from a sentence that expired by its own terms. Maleng v. Cook, --- U.S. ----, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Yet the validity of the earlier convictions may determine the propriety of the enhancement of the latest sentence. One way to challenge the prior conviction is through a petition for a writ of error coram nobis in the rendering court, arguing that the lingering consequences of the conviction (the enhancement of the subsequent sentence) authorizes a new look at the old judgment. See Lewis v. United States, 902 F.2d 576 (7th Cir.1990); United States v. Bush, 888 F.2d 1145 (7th Cir.1989). Another is to attack the latest sentence collaterally, on the ground that custody under it violates the Constitution because of the use of an invalid prior sentence. See United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Tucker holds that "misinformation of constitutional magnitude", id. at 447, 92 S.Ct. at 592--that is, reliance on an invalid prior conviction--authorizes relief from the current sentence.

William E. Crank maintains that he is in the same position as Tucker: his sentence has been enhanced because of an invalid prior conviction. In 1974 Crank was convicted in an Indiana court of second degree burglary; in 1981 Indiana convicted him of two counts of battery. Crank's sentence on the 1981 conviction was eight years, plus another thirty because of his prior conviction. Crank filed this petition under Sec. 2254, arguing that his 1974 conviction is invalid because counsel furnished defective assistance--particularly, did not appeal or secure his consent to forego an appeal. Crank wants the same relief afforded to Tucker: a new sentence uninfluenced by the prior conviction. The difference is that before Tucker filed his petition under Sec. 2255, he secured orders nullifying the prior convictions. Crank wants the court with jurisdiction of his current custodian to inquire into the validity of a different court's conviction. The district judge held that Maleng prevents that inquiry, because "custody" under a sentence--the foundation for collateral attack under Sec. 2254--ends when the sentence ends.

Although the district court did not spell this out, the implication is that Crank's only recourse is to seek a writ of error coram nobis vacating the 1974 conviction and return, writ in hand, to obtain collateral relief from the 1981 conviction on the theory of Tucker. Recurring to the jurisdiction that imposed the original penalty is a sound way to proceed. See Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). Judges need the records that are available in the original forum; lawyers from the original case also may be found there. If Crank's 1974 conviction had been in a court of New York, for example, that state might seek to defend the conviction (perhaps to ensure that it could enhance a later conviction in its own courts), and litigation in which a federal court in Indiana attempts to determine the validity of a New York conviction without the participation of officials from New York would create problems of federalism independent of the "custody" requirement in Sec. 2254.

A few days after the district court dismissed Crank's petition, we concluded that a return to the place of the original conviction is not the exclusive way to proceed. Lowery v. Young, 887 F.2d 1309 (7th Cir.1989), holds that a federal court has jurisdiction under Sec. 2254 to order a state to resentence a prisoner free of any effect of an...

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  • Cuppett v. Duckworth
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • 8 Octubre 1993
    ...the "in custody" requirement, Maleng v. Cook, 490 U.S. 488, 492-94, 109 S.Ct. 1923, 1926-27, 104 L.Ed.2d 540 (1989); Crank v. Duckworth, 905 F.2d 1090 (7th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991); Lowery v. Young, 887 F.2d 1309 (7th Cir.1989), that Cupp......
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