Young v. Vaughn, 95-1561

• Decision Date: 08 May 1996
• Docket Number: No. 95-1561,95-1561
• Citation: 83 F.3d 72
• Parties: Walter Washington YOUNG, Appellant, v. Donald T. VAUGHN; the Attorney General of the State of Pennsylvania; the District Attorney for Philadelphia County, Appellees.
• Court: U.S. Court of Appeals — Third Circuit

Page 72

83 F.3d 72

64 USLW 2799

Walter Washington YOUNG, Appellant, v. Donald T. VAUGHN; the Attorney General of the State of Pennsylvania; the District Attorney for Philadelphia County, Appellees.

No. 95-1561.

United States Court of Appeals, Third Circuit.

Argued March 18, 1996.

Decided May 8, 1996.

On Appeal from the United States District Court for the Eastern District of Pennsylvania; Thomas N. O'Neill, Jr., Judge. D.C. Civil Action No. 95-cv-01039.

Salvatore C. Adamo (argued), Phillipsburg, N.J., for appellant.

Deborah Fleischer (argued), Assistant District Attorney, Donna G. Zucker, Chief, Federal Litigation, Ronald Eisenberg, Deputy District Attorney, Law Division, Arnold H. Gordon, First Assistant District Attorney, Lynne Abraham, District Attorney, Philadelphia, PA, for appellees.

Before: BECKER, McKEE and McKAY, ^* Circuit Judges.

OPINION OF THE COURT

BECKER, Circuit Judge.

Walter Washington Young appeals from the district court's order dismissing his habeas corpus petition for lack of subject matter jurisdiction under 28 U.S.C. § 2254. Section 2254 confers jurisdiction on United States district courts to entertain petitions for habeas corpus relief only from persons who are "in custody" in violation of the Constitution or laws or treaties of the United States. The Supreme Court has interpreted this statutory language as requiring that, at the time his petition is filed, the petitioner must be "in custody" pursuant to the conviction or sentence he seeks to attack. See Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Because Young's petition challenges a conviction whose sentence had expired before he filed his petition, the district court, relying on Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), held that Young was not "in custody." However, since Young was serving another sentence when he filed his petition--a sentence that is a collateral result of his expired conviction--the district court should have construed his petition as challenging that sentence rather than his expired conviction. In so construing Young's petition, a construction in accord with Maleng, we hold that Young was "in custody" when he filed it, and hence that the district court had jurisdiction over Young's petition to the extent that it challenges his current sentence.

We also must address the distinct question whether, notwithstanding the district court's jurisdiction over Young's habeas challenge to his current sentence, Young may attack his expired conviction in the context of this habeas petition. We conclude that because Young's current sentence is a collateral result of his expired conviction, he may do so. See Clark v. Commonwealth of Pennsylvania, 892 F.2d 1142 (3d Cir.1989), cert. denied sub nom. Castille v. Clark, 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675 (1990). In so holding, we reject the Commonwealth's argument, based on its misreading of Custis v. United States, --- U.S. ----, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994), that a prisoner may attack a prior expired conviction that is a predicate to his current sentence only if he claims that he was denied his right to counsel in the proceedings resulting in that expired conviction. We therefore reverse the district court's order and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEDURAL HISTORY

On October 5, 1984, Young pleaded guilty in the Philadelphia County Court of Common Pleas to burglary. On November 14, 1989, while still on probation from his burglary conviction, Young was tried and convicted of robbery and sentenced to one-and-a-half to three years imprisonment. On March 21, 1990, finding that the 1989 robbery conviction violated the terms of Young's probation, Judge Tama Myers Clark revoked Young's probation on the burglary conviction and ordered him to serve ten to twenty years imprisonment. She later vacated that sentence pending disposition of the appeal of the 1989 robbery conviction. Then, on April 21, 1994, Judge Clark imposed a sentence of five to ten years imprisonment for violation of probation, which Young is presently serving.

Having unsuccessfully challenged his 1989 conviction through direct appeal and state collateral attack, ¹ Young, acting pro se, filed the present habeas corpus petition under § 2254 on February 23, 1995, ² alleging ineffective assistance of trial and appellate counsel in connection with his 1989 conviction. Named as respondents are Donald T. Vaughn, the Attorney General of the State of Pennsylvania, and the District Attorney for Philadelphia County (collectively "the Commonwealth"). Although the petition makes no reference to the 1984 conviction, Young did explain the relationship between the two convictions and his present incarceration in his "Response to Respondent's Response to Petition for Writ of Habeas Corpus," in which he contends: "Petitioner is entitled to federal habeas corpus relied [sic] since the expired conviction and sentence provided the basis for Judge Clark's revoking petitioner's probation and imposing the sentence now being served." Id. at 2.

Although the district court apparently did not receive this document until after the magistrate judge filed his Report and Recommendation, the magistrate judge discovered on his own initiative that Young was incarcerated even though the 1989 sentence had expired, and addressed the possibility that the sentence Young was serving had been partly the result of the 1989 conviction. However, he concluded that "even if that sentence was used to enhance the sentence for [sic] which he is now serving, under Maleng petitioner would still not satisfy the 'in custody' requirement to attack that conviction." The magistrate judge therefore recommended that the petition be dismissed for lack of jurisdiction. Young filed objections to the Report and Recommendation in which he again explained the connection between the convictions and his present incarceration. However, the district court adopted the Report and Recommendation and dismissed the petition for lack of jurisdiction.

Young filed a timely notice of appeal. We granted a certificate of probable cause and appointed counsel for him. We have jurisdiction under 28 U.S.C. § 1291. Our review of the district court's legal conclusions, including its determination of jurisdictional issues, is plenary. See United States v. Luther, 954 F.2d 910 (3d Cir.1992).

II. YOUNG'S CHALLENGE TO HIS CURRENT SENTENCE

A. Maleng v. Cook

The Commonwealth contends that under Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), the district court lacks jurisdiction; hence, we must examine that case. Cook, the petitioner in Maleng, was convicted of robbery in 1958 in state court and was sentenced to twenty years imprisonment. Id. at 489, 109 S.Ct. at 1924. While on parole from that sentence, he was convicted of three state crimes and, in 1978, was sentenced to two life terms and one ten year term. Id. The 1958 conviction increased by several years the mandatory minimum term Cook was required to serve. Id. Cook was also convicted of a federal crime while on parole, and that sentence was to be served before the 1978 state sentences. Id. While in federal prison, Cook filed a habeas corpus petition attacking the 1958 conviction, claiming that it had been used illegally to enhance the 1978 state sentences. Id. The district court dismissed the petition for lack of jurisdiction because, having served that sentence, Cook was not "in custody" for the purposes of an attack on the 1958 sentence. Id. at 490, 109 S.Ct. at 1925.

The Court of Appeals reversed. It held that Cook was "in custody" under the 1958 conviction because that conviction had been used to enhance the length of his sentences for his 1978 convictions. Cook v. Maleng, 847 F.2d 616, 618-19 (9th Cir.1988). The Supreme Court affirmed, but differed from the Court of Appeals in its reasoning: "We think that [the Court of Appeals'] interpretation stretches the language 'in custody' too far." Maleng, 490 U.S. at 491, 109 S.Ct. at 1925. The Court observed that it had "never held ... that a habeas petitioner may be 'in custody' under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed." Id. A petitioner does not remain "in custody" under a conviction, the Court held, "after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted." ³ Id. at 492, 109 S.Ct. at 1926.

Nevertheless, the Court did not reverse the Court of Appeals' decision because, under Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968), Cook could be considered "in custody" for the 1978 sentences, even though he had not started serving them. The Court construed his petition, "with the deference to which pro se litigants are entitled," as challenging the 1978 sentences. Id. at 493, 109 S.Ct. at 1927. The Court expressed "no view on the extent to which the 1958 conviction itself may be subject to challenge in the attack upon the 1978 sentences which it was used to enhance." Id. at 494, 109 S.Ct. at 1927.

B. Application of Maleng

to this Case

In the present case, the district court has jurisdiction over Young's petition for the same reasons the Supreme Court found jurisdiction in Maleng: although the district court lacks jurisdiction over a direct challenge to Young's 1989 conviction, it should have construed Young's petition as attacking the sentence he is currently serving. See 490 U.S. at 493-94, 109 S.Ct. at 1926-27. While Young's petition referred only to his expired 1984 conviction, his subsequent filings provided sufficient information concerning both his 1984 and 1989 convictions and their relationship to his present sentence to support such a construction. ⁴ Moreover, the purpose of Young's petition...