Ward v. Knoblock, s. 82-1743

• Citation: 738 F.2d 134
• Decision Date: 28 June 1984
• Docket Number: 83-5152,Nos. 82-1743,s. 82-1743
• Parties: Michael Charles WARD, Plaintiff-Appellant, v. Huron County Circuit Judge KNOBLOCK, and Frank J. Kelley, (82-1743), Defendants-Appellees. William L. HERRON, Jr., Petitioner-Appellant, v. UNITED STATES of America, (83-5152), Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 134

738 F.2d 134

Michael Charles WARD, Plaintiff-Appellant, v. Huron County Circuit Judge KNOBLOCK, and Frank J. Kelley,

(82-1743), Defendants-Appellees.

William L. HERRON, Jr., Petitioner-Appellant, v. UNITED STATES of America, (83-5152), Respondent-Appellee.

Nos. 82-1743, 83-5152.

United States Court of Appeals,

Sixth Circuit.

Argued April 11, 1984.

Decided June 28, 1984.

Richard A. Fromson, argued, Cleveland, Ohio, for plaintiff-appellant.

Frank J. Kelley, Atty. Gen. of Mich., Thomas C. Nelson, Asst. Atty. Gen., Lansing, Mich., David Edick, argued, for defendants-appellees.

William Farmer, Federal Public Defender (Court-appointed), Paula D. Godsey, argued, Nashville, Tenn., for petitioner-appellant.

Ronald E. Meredith, U.S. Atty., Alexander T. Taft, Mikell Grafton McMurry, Hancy Jones, III, argued, Asst. U.S. Attys., Louisville, Ky., for respondent-appellee.

Before ENGEL, MERRITT and MARTIN, Circuit Judges.

MERRITT, Circuit Judge.

In these two appeals we are presented with different but related problems, each requiring us to interpret the phrase "in custody" as it is used in the context of the writ of habeas corpus and the writ of error coram nobis, respectively. See 28 U.S.C. Secs. 2241(c)(3) & 2254(a) (1982) (habeas corpus); 28 U.S.C. Sec. 2255 (1982) (coram nobis). ¹ In the first case, a prisoner presently in federal custody seeks to attack an earlier state sentence which was fully served. In the second, a prisoner presently in state custody seeks to attack his federal sentence which he has not yet served.

In the first case, No. 83-1743, the issue is whether plaintiff, who has fully served his state sentence on a 1971 Michigan drug conviction and who is now incarcerated in a federal prison in a different state on an unrelated charge, has satisfied the "in custody" requirement of section 2254(a) so that he may collaterally attack in a federal court in Michigan his state conviction. The issue in the second case, No. 83-5152, is whether petitioner, who is still in the custody of the sentencing state and seeks to vacate a subsequent federally-imposed sentence to be served in the future, has satisfied the "in custody" requirement of section 2255. Because the issues in the two cases are similar, we consolidated them for opinion. We conclude that the petitioner is not "in custody" in the first case but is "in custody" in the second.

Accordingly, for the reasons set forth below, we affirm in the first case and reverse in the second.

I.

A. No. 82-1743

Plaintiff Michael Charles Ward was convicted in January, 1971, in Michigan state court, of possession of marijuana and LSD. After serving approximately twenty months of his sentence, he was paroled and then discharged from parole under the authority of People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972) (holding that statutory categorization of marijuana along with "hard drug" narcotics for imposition of penalty denied equal protection).

In 1980, while he was incarcerated in an Oklahoma federal prison on an unrelated charge, plaintiff filed a pro se petition in the Huron County Circuit Court in Michigan for post-conviction remedies, alleging ineffectiveness of counsel on grounds that he had not been informed of his right to appeal the 1971 conviction. After pursuing this claim for post-conviction relief unsuccessfully in the state courts, plaintiff filed this habeas corpus action in a Michigan federal court. He alleged that the state court's denial of his application for court-appointed counsel for his "delayed direct appeal" from the state conviction violated his due process rights and that the "tainted unconstitutional conviction" had caused him collateral and irreparable injury in that it (1) enhanced the custody level of his present federal confinement, (2) adversely affected his parole eligibility, (3) precluded him from certain forms of federal rehabilitation which are available to prisoners without prior felony convictions, including working, attending college classes, and becoming a trustee, and (4) caused him to suffer discrimination and humiliation, since the 1970 conviction will remain on his record as a felony, even though Michigan law has changed it to a misdemeanor, and he will be ineligible to vote or carry arms. Plaintiff requests equitable relief in the form of a declaratory judgment and an order compelling the Huron County Circuit Court to recognize plaintiff's right to take a direct appeal and appoint the state Appellate Defender's Office at county expense to represent him in that appeal. He named as defendants Huron County Circuit Judge M. Richard Knoblock and Michigan Attorney General Frank J. Kelley.

The case was referred to a magistrate, and the Attorney General filed a motion to dismiss or, in the alternative, for summary judgment, in which he argued that plaintiff's complaint should be construed as a petition for habeas corpus under 28 U.S.C. Sec. 2254 and dismissed for failure to allege Michigan custody. The Magistrate agreed that plaintiff's action was most closely analogous to a habeas corpus petition since plaintiff's claim that his allegedly unconstitutional conviction adversely affects his parole eligibility should be viewed as a challenge to the duration of his present incarceration. The Magistrate noted that habeas corpus jurisdiction is not limited to petitions filed by persons physically present within the territorial limits of a district court, but held that the "in custody" requirement of 28 U.S.C. Sec. 2241(c) barred plaintiff's claim:

Plaintiff filed his complaint long after the sentence expired on the conviction he complains of and he is currently imprisoned in a federal institution on other charges. While it is true that the collateral consequences of his 1971 conviction would spare a jurisdictionally valid petition for habeas corpus from becoming moot upon the expiration of his sentence, Fiswick v. United States, 329 U.S. 211, 222 [67 S.Ct. 224, 230, 91 L.Ed. 196] (1946), it is also true that "[t]he federal habeas corpus statute requires that the applicant must be in custody when the application for habeas corpus is filed," Carafas v. Lavalee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). The fact that Michigan has lodged a detainer against him on another charge is insufficient to meet that requirement.

Magistrate's Report and Recommendation at 8.

The District Court accepted the Magistrate's Report after a de novo review and dismissed the action. It is from this judgment that plaintiff Ward now appeals.

B. No. 83-5152

Petitioner Herron was convicted in 1976 of kidnapping, in violation of 18 U.S.C. Sec. 1201(a) (1982), and interstate transportation of a stolen motor vehicle, in violation of 18 U.S.C. Sec. 2312 (1982). He was sentenced to two consecutive life sentences for the kidnapping and a consecutive five-year sentence for interstate transportation of the stolen motor vehicle. All sentences were ordered to be served consecutive to any term being served in the state penitentiary. At the time of his conviction, petitioner was incarcerated in a Missouri state prison pursuant to an earlier, unrelated conviction and sentence. Inexplicably, however, before being returned to the Missouri prison to serve the remainder of two concurrent life sentences, petitioner was delivered to a federal prison in Illinois, where he remained some two years, until April, 1978. ²

This Court affirmed petitioner's convictions on direct appeal in 1977. In 1981, petitioner filed a pro se section 2255 motion to vacate the conviction and sentence, alleging ineffectiveness of counsel.

The case was referred to a magistrate, who concluded that petitioner could not claim the right to be released under 28 U.S.C. Sec. 2255, since that statute requires the prisoner to be presently in custody pursuant to the sentence being attacked. The Magistrate reasoned that this requirement was not satisfied because at the time petitioner filed his pro se section 2255 action, he was in a Missouri prison serving a Missouri sentence, and "the sentences imposed by this Court and being attacked by the movant will not begin to be served by [him] ... until he completes service of the Missouri sentences." Findings of Fact, Conclusions of Law, and Recommendations at 3-4. The District Court adopted the Magistrate's findings and recommendation in full and denied petitioner's motion to vacate, set aside or correct the sentence.

II.

Plaintiff Ward's habeas corpus action is based on 28 U.S.C. Sec. 2254(a), which provides remedies in federal courts for unlawful state custody. Section 2254(a) states:

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. Sec. 2254(a) (1982) (emphasis added). Petitioner argues that the words "in custody" as they are used in section 2254(a) should be read very broadly, citing as authority Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), in which the Supreme Court held that a prisoner "in custody" under one sentence may attack, by means of habeas corpus proceedings, a sentence which he has not yet begun to serve. Apparently, petitioner's reasoning is that if under Peyton the "in custody" requirement must be read to allow prisoners to use habeas corpus petitions to challenge future confinement, the same analysis should logically work in reverse to compel the conclusion that the "in custody" language permits prisoners to challenge past confinement.

This syllogism fails. Neither the language of the statute nor the manifest purpose of the writ goes that far. As the Supreme Court wrote in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), "It is clear ... that the essence of habeas corpus is an attack...