Allen v. State of Or., 98-35031

• Citation: 153 F.3d 1046
• Decision Date: 31 August 1998
• Docket Number: No. 98-35031,98-35031
• Parties: 98 Cal. Daily Op. Serv. 6760, 98 Daily Journal D.A.R. 9440 Edward E. ALLEN, Petitioner-Appellant, v. STATE OF OREGON, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1046

153 F.3d 1046

98 Cal. Daily Op. Serv. 6760, 98 Daily Journal

D.A.R. 9440

Edward E. ALLEN, Petitioner-Appellant, v. STATE OF OREGON, Respondent-Appellee.

No. 98-35031.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 10, 1998.

Decided Aug. 31, 1998.

Thomas K. Coan, Portland, Oregon, for petitioner-appellant.

Janet A. Klapstein, Assistant Attorney General, Salem, Oregon, for respondent-appellee.

Appeal from the United States District Court for the District of Oregon; Robert E. Jones, District Judge, Presiding. D.C. No. CV-96-01618-JO.

Before: ALARCON, FERGUSON, and BRUNETTI, Circuit Judges.

ALARCON, Circuit Judge:

Edward Allen ("Allen") appeals from the order dismissing his habeas corpus petition challenging the constitutional validity of his 1991 state misdemeanor convictions for issuing false financial statements. We affirm that portion of the district court's decision pertaining to the issue of whether Allen was "in custody" for purposes of challenging the state convictions. We vacate that portion of the district court's decision dismissing Allen's petition on mootness grounds because we conclude that the court lacked personal jurisdiction over the warden of the federal prison where Allen was incarcerated at the time the petition was filed.

I

Allen filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254 on October 30, 1996, attacking four 1991 state misdemeanor convictions. For these state convictions, Allen was placed on probation and ordered to serve four consecutive six-month jail terms as a condition of probation. This jail time was ordered to be served concurrently with Allen's thirty-six month state sentence imposed for his felony convictions on charges of theft and aggravated theft. The Court of Appeals of Oregon, citing ex post facto concerns, vacated the sentence of jail time in two of the four misdemeanor cases. See Oregon v. Allen, 120 Or.App. 526, 851 P.2d 638, 639 (1993). Thus, the cumulative jail time served by Allen pursuant to the convictions challenged in his § 2254 petition was twelve months.

In 1987, Allen pled guilty to federal charges of filing false tax returns in violation of 18 U.S.C. § 287, and making false statements on loan applications in violation of 18 U.S.C. § 1014. Allen's sentence for the 1987 offenses was suspended, and he was placed on five years' probation. In 1988, the district court found that Allen had violated the terms of the 1987 probation order. The court modified the terms of Allen's probation, adding two special conditions prohibiting Allen from (1) completing any cash transaction over one-hundred dollars ($100), and (2) engaging in any financial transaction over one-hundred dollars ($100) without the involvement of a banking institution and the approval of the probation officer.

On February 5, 1992, a petition for warrant and order to show cause why probation should not be revoked was issued by the United States District Court for the District of Oregon. The petition alleged that Allen's state felony and misdemeanor convictions as well as the conduct underlying those convictions violated the terms of Allen's 1988 probation order.

In December 1993, Allen was indicted by a federal grand jury on forty-seven counts of making false statements on loan applications in violation of 18 U.S.C. § 1014. Allen was convicted on thirty-five of the forty-seven counts on January 31, 1994. On October 17, 1994, Allen was sentenced by Judge Michael Hogan to serve concurrent sentences totaling forty six months for the 1994 convictions. The court also revoked Allen's 1988 federal probation, and sentenced Allen to serve a total of sixty months imprisonment for the 1987 offenses underlying the probation order. This sentence was ordered to be served consecutively with the forty-six month sentence. Judge Hogan originally based the probation revocation solely on Allen's 1994 convictions. On November 14, 1994, the court amended the revocation of probation order, citing Allen's state convictions and the conduct underlying those convictions, as well as the new 1994 federal convictions, as grounds for revoking Allen's 1988 probation.

Allen was released from state custody directly into federal custody on February 24, 1994. Pursuant to Oregon law, Allen's state probationary period ended on June 21, 1996. Allen filed his habeas corpus petition in this matter on October 30, 1996. He named the State of Oregon as the sole respondent. On January 13, 1997, the district court ordered Allen to "file an amended habeas corpus petition naming his [Allen's] current custodian

                [Joseph Crabtree, Warden FCI Sheridan] as the respondent, as well as the Attorney General of the State of Oregon."   Allen complied with the court's order, and filed an amended § 2254 petition on January 28, 1997, naming both Joseph Crabtree, in his capacity as warden of the federal prison where Allen was incarcerated, and the Attorney General of the State of Oregon as respondents.  Allen also filed a certificate of service with the court, declaring that he had "served a copy of the amended petitioner [sic] for relief pursuant to § 2254 upon the defendants ... by mailing the same in the U.S. mail."   The State of Oregon filed a motion to dismiss this § 2254 petition on the ground that Allen was no longer in state custody.  The district court granted the State of Oregon's motion on mootness grounds and dismissed Allen's § 2254 petition.  Allen appeals from the order dismissing the § 2254 petition
                

II

Section 2254 of Title 28 states in pertinent part:

The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person 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) (emphasis added); see also 28 U.S.C. § 2241(c)(3) ("The writ of habeas corpus shall not extend to a prisoner unless ... [h]e is in custody in violation of the Constitution or laws or treaties of the United States"). The Supreme Court has "interpreted the statutory language as requiring that the habeas petitioner 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, 104 L.Ed.2d 540 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)).

Allen's state sentence expired on June 21, 1996. As of June 22, 1996, Allen was no longer in state custody. Allen's § 2254 petition attacking the validity of the state convictions was not filed until October 30, 1996. Allen maintains, however, that the Supreme Court's decision in Garlotte v. Fordice, 515 U.S. 39, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995), suggests that Allen is still "in custody" under the expired state sentence for habeas corpus jurisdiction purposes. Alternatively, Allen argues that the "in custody" requirement is satisfied because on the date the § 2254 petition was filed, he was serving a federal sentence "enhanced" by the allegedly invalid state convictions. ¹

In Garlotte, the Court held that a series of consecutive sentences is to be treated as a "continuous stream," so that a petitioner "remains 'in custody' under all of his sentences until all are served." Id. at 41, 115 S.Ct. 1948. Accordingly, argues Allen, the district court had subject matter jurisdiction to consider his § 2254 challenge to the state convictions directly--without resort to the deferential construction rule announced in Cook. This argument is without merit. As we explained in Contreras v. Schiltgen, 122 F.3d 30 (9th Cir.1997), aff'd on add'l grounds, 151 F.3d 906, slip op. 8675 (9th Cir.1998), Garlotte applies only when the petitioner is still in the custody of the same sovereign responsible for the challenged conviction. See id. at 33. Here, Allen is no longer in state custody. Hence, Allen's reliance on Garlotte is misplaced.

Allen's alternative argument that he is "in custody" under a federal sentence "enhanced" by the allegedly invalid state convictions derives from the Supreme Court's decision in Cook and our decision in Feldman v. Perrill, 902 F.2d 1445 (9th Cir.1990).

In Cook, the petitioner filed a pro se petition for habeas corpus relief, challenging a 1958 state conviction which "expired by its terms in 1978." ² Cook, 490 U.S. at 489, 109 S.Ct. 1923. Cook filed the § 2254 petition in 1985, while serving a federal sentence for In Feldman, this court applied Cook in construing a federal prisoner's pro se § 2254 petition challenging an expired state sentence as a challenge under 28 U.S.C. § 2241(c) to the United States Parole Commission's ("USPC") calculation of his eligibility for parole. See Feldman, 902 F.2d at 1448-49. We explained in Feldman that "we have jurisdiction to entertain [Feldman's] petition only by construing it as an attack on his federal sentence." Id. at 1450 n. 3 (emphasis added). In remanding the petition to the district court, the panel stated that if the district court concluded that the USPC had relied on the challenged state conviction in calculating Feldman's parole eligibility, then the district court "shall consider and resolve Feldman's claim that the challenged conviction was improper." Feldman, 902 F.2d at 1449. ³ In light of Cook and Feldman, we are

                bank robbery and conspiracy.  Cook was scheduled to return to state custody at the end of his federal sentence to begin serving a sentence stemming from a 1978 state court conviction.  The district court dismissed Cook's petition for lack of subject matter jurisdiction, citing the "in custody" requirement of § 2254.  We reversed the district court's decision, holding that "because Cook's 1958 conviction lengthened his [subsequent] 1978 [state court] sentence, Cook is 'in custody' for the purposes of a habeas corpus attack on the 1958

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