Karr v. Crabtree, CS-95-543-JLQ.
| Decision Date | 08 October 1998 |
| Docket Number | No. CR-91-055-JLQ.,No. CS-95-543-JLQ.,CS-95-543-JLQ.,CR-91-055-JLQ. |
| Citation | 21 F.Supp.2d 1228 |
| Parties | Oluf Kaae KARR, Petitioner, v. Joseph H. CRABTREE, Respondent. UNITED STATES of America, Plaintiff, v. Oluf Kaae KARR, Defendant. |
| Court | U.S. District Court — District of Washington |
Gerald R. Smith, Federal Defender, Spokane, WA, for Defendant.
Oluf Kaae Karr, Sheridan, OR, pro se.
Thomas Owen Rice, U.S. Atty's Office, Spokane, WA, for U.S.
BEFORE THE COURT is Petitioner Olaf Karr's Amended Petition for Writ of Habeas Corpus, heard without oral argument on October 6, 1998. Petitioner/Defendant is proceeding pro se. Assistant United States Attorney Thomas O. Rice represents Respondent/Plaintiff. Having reviewed the record, and being fully advised in this matter, IT IS HEREBY ORDERED that Petitioner's Amended Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE for the following reasons.
The complex background of this case illustrates well the problems associated with a Defendant's right to collaterally attack a prior criminal conviction by way of habeas corpus, the interrelationship between the various habeas corpus statutes, as well as the collateral consequences of sentences enhanced by previous convictions and expired sentences.
On June 12, 1991, Oluf Karr pleaded guilty in this court to a felon in possession of a firearm charge in violation of 18 U.S.C. § 922(g)(1). The Presentence Report prepared by the Probation Office confirmed that Mr. Karr had previously been convicted and sentenced for (1) first degree armed robbery, following a jury trial in the California Superior Court for Contra Costa County on March 31, 1966; (2) first degree armed robbery, following a guilty plea in the California Superior Court for San Joaquin County on April 11, 1966; (3) a second first degree armed robbery, following a guilty plea in the California Superior Court for San Joaquin County on April 11, 1966; and (4) conspiracy to smuggle heroin in the United States District Court for the Northern District of California on October 11, 1978.
On August 23, 1991, the court imposed a sentence of 15 years in prison as an "armed career criminal" pursuant to 18 U.S.C. § 924(e)(1). Section 924(e)(1) provides that anyone convicted of being a felon in possession of a firearm with three previous convictions by any court for a violent felony or a serious drug offense "shall be imprisoned not less than 15 years."
In June 1993, Mr. Karr filed a Petition for Reduction of Sentence arguing that his current conviction for possession of a firearm by a felon was not a crime of violence and therefore, he should not have been sentenced as a "career offender" pursuant to U.S.S.G. § 4B1. This petition was denied because Mr. Karr was not sentenced pursuant to U.S.S.G. § 4B1, but rather was sentenced pursuant to 18 U.S.C. § 924(e).
On May 10, 1995, Mr. Karr filed a Petition for Writ of Habeas Corpus in the Northern District of California, challenging his March 31, 1966 conviction of first degree armed robbery, a claim he had exhausted in the state courts. The District Court for the Northern District of California treated the Petition as a Petition under 28 U.S.C. § 2255 challenging his federal sentence, which he was serving at the time, and transferred the petition to this sentencing court.
Mr. Karr then filed an Amended Petition for Writ of Habeas Corpus arguing that both the March 31, 1966 conviction for first degree armed robbery and one of the April 11, 1966 convictions for first degree armed robbery were unconstitutional in that his guilty pleas were not voluntarily and intelligently made, and that his attorney provided ineffective assistance of counsel. On July 30, 1966, the court dismissed Mr. Karr's Amended Petition Without Prejudice for failure to exhaust his state remedies as to the April 11, 1996 conviction, as required by the holding in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982).
On September 26, 1996, Mr. Karr moved to reopen his amended habeas petition, and the court denied the motion on March 24, 1997. Mr. Karr then pursued an appeal to the Ninth Circuit Court of Appeals of the Order Denying the Motion to Reopen. The Ninth Circuit remanded the case to this court for a decision either granting or denying a certificate of appealability. On June 24, 1997, this court denied a certificate of appealability, and on October 10, 1997, the Ninth Circuit also denied a certificate of appealability.
On May 14, 1998, Mr. Karr filed a Motion to Lift Stay on Amended Petition for Writ of Habeas Corpus. However, Mr. Karr's petition was never stayed, rather it was dismissed without prejudice for failure to exhaust state remedies. By Order dated August 24, 1998, the court treated Mr. Karr's motion as a renewed Motion to Reopen the Amended Petition, Mr. Karr having now exhausted his state court remedies. The court granted the Motion to Reopen the Amended Petition. The court directed the Government to respond to Petitioner's Amended Petition, and directed Mr. Karr to serve and file his reply on or before October 2, 1998.
The Government timely filed its response. Rather than filing a reply, Mr. Karr has now filed a Motion for Order to Stay Proceedings (Ct.Rec.87); Motion for Relief from Judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure (Ct.Rec.88); Motion for Leave to Amend (Ct.Rec.89); and yet another Amended Petition for Writ of Habeas Corpus (Ct.Rec.90), challenging still another expired state court conviction. All of these motions are HEREBY DENIED, as the court finds it does not have subject matter jurisdiction over any challenge to state convictions with expired sentences used to enhance Mr. Karr's federal sentence.
Mr. Karr is challenging the constitutional validity of convictions in California state courts 32 years ago, with sentences long ago expired, which were used to enhance Mr. Karr's federal sentence. The court is satisfied that it does not have subject matter jurisdiction over these claims or any other challenges to the expired state convictions, absent a claim that Mr. Karr was convicted without the opportunity to be represented by an attorney.
The Government contends that Mr. Karr's petition should be dismissed for several reasons including (1) Petitioner Karr has not met the prerequisites of Rule 59 or Rule 60 to reopen his petition; (2) Mr. Karr has procedurally defaulted his claims; (3) the Ninth Circuit has not decided whether a prisoner can collaterally challenge the validity of a prior conviction used for federal sentencing enhancement, other than a claim pursuant to Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and (4) the Petition should be dismissed on the merits. This court is satisfied that Mr. Karr cannot collaterally attack the validity of his prior convictions used to enhance his federal sentence, other than a Gideon claim, which he does not have. Therefore, Mr. Karr's Petition must be dismissed because this court lacks subject matter jurisdiction, making the other asserted reasons for dismissing the Petition moot.
To begin with, while there are statutes providing the means for a prisoner to collaterally challenge both state court convictions and federal convictions, it is clear that there is no statute which specifically authorizes the collateral challenge to the validity of state court convictions which have completely expired and are used to enhance a federal sentence.
28 U.S.C. § 2241 provides that "[t]he 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."
28 U.S.C. § 2254 is the means by which a prisoner "in custody pursuant to the judgment of a State court" may challenge the state conviction. 28 U.S.C. § 2255, on the other hand provides the vehicle for challenging a federal conviction and sentence. It provides that a prisoner in custody under sentence of a court, claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States may move the court which imposed the sentence to vacate, set aside, or correct the sentence.
The "in custody" language of all the habeas corpus statutes has been the subject of numerous Supreme Court and Ninth Circuit decisions. No Supreme Court decision directly addresses the issue currently before this court, and opinions of panels of the Ninth Circuit have ruled inconsistently on the question. The most recent Ninth Circuit case on the subject leaves this question still unanswered in this circuit. See Allen v. State of Oregon, 153 F.3d 1046 (9th Cir.1998), discussed infra.
In the early case of Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), the Supreme Court held that the governing federal prescription permits prisoners incarcerated under consecutive state-court sentences to apply for federal habeas relief from sentences they had not yet begun to serve. The petitioner was serving the first of two consecutive state-court sentences and was challenging the second conviction the sentence for which he had not yet begun to serve. The Court stated that, for purposes of habeas relief, consecutive sentences should be treated as a continuous series.
Twenty years later, in Cook v. Maleng, 847 F.2d 616, (9th Cir.1988), the Petitioner filed a petition for habeas relief, challenging a 1958 state-court conviction which had expired by its terms in 1978. Cook filed a petition under § 2254 in 1985, while serving a federal sentence. 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 Ninth Circuit held that "because Cook's 1958 conviction lengthened his subsequent 1978 state...
To continue reading
Request your trial