Flittie v. Solem

• Decision Date: 14 August 1989
• Docket Number: No. 87-5365,87-5365
• Citation: 882 F.2d 325
• Parties: Roger G. FLITTIE, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary; Mark Meierhenry, Attorney General, State of South Dakota, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 325

882 F.2d 325

Roger G. FLITTIE, Appellant, v. Herman SOLEM, Warden, South Dakota State Penitentiary; Mark Meierhenry, Attorney General, State of South Dakota, Appellees.

No. 87-5365.

United States Court of Appeals Eighth Circuit.

Aug. 14, 1989.

ORDER

Before LAY, Chief Judge, and McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, MAGILL and BEAM, Circuit Judges.

Roger G. Flittie appeals the denial of his application for writ of habeas corpus. Flittie is presently incarcerated having been sentenced under a habitual criminal statute SDCL 22-7-8. At this time Flittie essentially attacks a prior conviction which he alleges was used to illegally enhance his habitual criminal conviction. This court denied this same claim in 751 F.2d 967 (8th Cir.1985), and affirmed en banc in 775 F.2d 933 (8th Cir.1985). Assuming, but without deciding this court has jurisdiction, we find that this second petition is essentially a successive habeas corpus petition and is subject to dismissal under Rules Governing Section 2254 Cases, Rule 9(b), 28 U.S.C. foll. Sec. 2254 (1982). The denial of the petition for writ of habeas corpus is affirmed.

WOLLMAN, Circuit Judge, did not participate in this decision.

JOHN R. GIBSON, MAGILL and BEAM, Circuit Judges, concur specially.

BEAM, Circuit Judge, with whom JOHN R. GIBSON and MAGILL, Circuit Judges, join, concurring specially.

I concur in the result reached by the majority. I also agree that Flittie's petition is, indeed, a second or successive application, subject to dismissal under Rule 9(b) of the Rules Governing Section 2254 Cases, 28 U.S.C. foll. Sec. 2254 (1982). However, this court has no jurisdiction over the subject matter of this action, a condition precedent to the substantive evaluations contemplated by Rule 9(b).

JURISDICTION

"[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 treatises of the United States." 28 U.S.C. Sec. 2254(a) (1982) (emphasis added). Thus, Flittie must have been in custody, as such status has been variously defined, with regard to the conviction or sentence under attack in order for subject matter jurisdiction to attach. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968). A want of subject matter jurisdiction prohibits a court from considering any substantive aspects of a case or controversy. The Supreme Court as early as Ex parte McCardle, 74 (7 Wall.) U.S. 506, 514, 19 L.Ed. 264 (1868) stated "[j]urisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that announcing the fact and dismissing the cause." Indeed, in McCardle, the Supreme Court had already heard oral argument in the controversy when the Congress, as it had the power to do, eliminated jurisdiction. This principle has been repeatedly restated. See Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 440-41, 105 S.Ct. 2757, 2765-66, 86 L.Ed.2d 340 (1985) (determining that "[t]he Court of Appeals lacked jurisdiction to entertain respondent's appeal and should not have reached the merits"); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379, 101 S.Ct. 669, 676,

66 L.Ed.2d 571 (1981) (stating that "[a] court lacks discretion to consider the merits of a case over which it is without jurisdiction"). See also First National Bank v. Wright, 775 F.2d 245, 247 (8th Cir.1985) (holding that "[b]ecause we have no jurisdiction over this appeal, we may not consider the merits of appellant's argument").

THE ALLEGATIONS

Most of the facts relevant to this matter are set forth in the panel opinion filed in this case, Flittie v. Solem, 867 F.2d 1053 (8th Cir.1989), vacated with reh'g granted, No. 87-5365 (8th Cir. Mar. 21, 1989) and will not be restated. Some matters need to be repeated and additional points set forth for the sake of clarity.

Flittie is presently incarcerated in the South Dakota State Penitentiary pursuant to a 40-year sentence imposed as a result of a 1985 felony conviction. The sentence for the 1985 conviction was enhanced under S.D. Codified Laws Ann. 22-7-8 (1988) because Flittie had been previously convicted of three or more "additional" felonies. He had, in fact, been convicted of four prior serious crimes.

In the amended pleadings upon which this matter was considered in the district court, Flittie pointed out that he needed to attack two of the previous four convictions in order to be successful in reducing his current sentence. His amended petition for habeas relief stated that he was simultaneously attacking a 1980 conviction in federal court (the subject matter of this action) and a 1977 conviction in state court. He alleged that success in both attacks, federal and state, would put him in a position to require the State of South Dakota to reduce his sentence. Specifically, Flittie, in his amended petition, alleged as follows:

Petitioner is presently in custody at the South Dakota State Penitentiary as a result of a judgment of a felony conviction rendered by the South Dakota Circuit Court, Second Judicial Circuit, Minnehaha County, South Dakota, Case Number Cr 85-144. In that proceeding, the court was advised that Petitioner had four prior felonies, (See Attachment A). In accordance with SDCL 22-7-8, the sentencing court treated Petitioner as an habitual offender resulting in Petitioner being awarded a greatly enhanced sentence. The felonies listed included one felony based upon SDCL 22-37-18, receiving stolen property, a statute which had been repealed two months prior to the Petitioner's conviction on that charge. Correction of this error is presently being obtained in state court (See Attachment B). Consequently, the validity of the judgment which is the subject of this Petition becomes extremely critical, since its exclusion will require the state sentencing court to reduce the Petitioner's sentence significantly. Clearly the Petitioner is in custody because of the judgment of conviction which Petitioner is herein attacking.

Amended Petition for Writ of Habeas Corpus at 1-2 (emphasis added). Thus, the petition in this matter clearly points out that Flittie is attacking, in this particular case, a May 15, 1980, conviction for being an accessory after-the-fact to murder. Notwithstanding that the 1980 conviction had been fully served, Flittie contended in the district court, and in this appeal, that he met the custody requirement of 28 U.S.C. 2254(a) because of the collateral (enhancing) consequences of the 1980 conviction. In spite of the issues alleged and framed in the district court and on appeal, the majority has assumed, presumably, in order to deal with the substance of the claims under Rule 9(b), that Flittie is attacking in this case his present (1985) sentence. ¹ Such an analysis is unsupported by the pleadings or the issues as otherwise framed by the parties. Such analysis is also undermined by the action taken by the majority.

There is no dispute that Flittie has long since fully served the 1980 sentence and has fully discharged all obligations imposed In this case, the habeas petition alleges that a successful future attack upon the 1985 conviction may result from the vitiation of both the 1977 conviction and the 1980 conviction. Otherwise, the 40-year sentence remains within the statutory guidelines established for three or more prior offenses. The petition makes no substantive allegations whatsoever that the 1985 sentence is currently under attack.

                as a result of his 1980 conviction.  Therefore, this case is controlled by the May 15, 1989, holding of the Supreme Court in Maleng v. Cook, --- U.S. ----, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989).  In Maleng, as here, the petitioner sought to attack a conviction for which the sentence was fully served.  He sought to establish, as in this case, subject matter jurisdiction as to the fully served crime by pointing out the enhancing (collateral) effect the crime had upon a sentence imposed for a later

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