TERRY LEE BATTLE, PETITIONER-APPELLANT,
v.
ALBERT G. THOMAS, WARDEN, RESPONDENT-APPELLEE
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A habeas petitioner currently incarcerated on an enhanced sentence may challenge the prior conviction used for enhancement, even if the prior sentence has expired.
Appellant was convicted in 1983 and sentenced to probation, which has expired. He is currently serving a life sentence for a 1984 rape conviction, whi…
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CLARK, Circuit Judge:
In 1983, appellant was convicted and sentenced to five years of probation for an offense against property. In 1984, he was sentenced to a life term on a rape charge; his sentence was enhanced by the 1983 conviction under Georgia's habitual offender act. In federal habeas proceedings, appellant now claims that his 1983 conviction was illegally obtained. He claims to have had ineffective assistance of counsel, and he alleges a conspiracy between his defense attorney and the prosecutor to falsely imprison him. The district court, adopting the magistrate’s recommendation, based its decision solely on the grounds that “the probation sentence attacked ... by [appellant] has already expired and he can suffer no repercussions therefrom[,] and ... he is currently imprisoned on his 1984 rape conviction — not the 1983 criminal damage to property conviction.” 1
Maleng v. Cook2 held that a habeas petitioner had to be “in custody” — either physically in prison or on parole — in order to challenge a sentence on habeas corpus grounds. The Supreme Court in Maleng excluded from the definition of “in custody” instances in which a petitioner had fully served a former sentence and only suffered from certain collateral consequences of the conviction, such as the inability to hold public office or the possibility that the former sentence would be used to enhance a future sentence. The Court did not directly rule on the question of whether a petitioner could challenge the enhancement of his current sentence by an allegedly invalid prior sentence.3 In Fox v. Kel-so,
Here (reading his complaint with the liberality due to pro se petitioners), appellant claims that his current sentence was enhanced by his allegedly invalid prior property offense.9 Thus, dismissal on grounds that the prior sentence was discharged was error. The record is unclear as to whether appellant exhausted his state court remedies. Appellee apparently has filed no response in either the district court or this court. If appellant has served the state with his papers, the state may have waived its procedural exhaustion claims.10
We therefore reverse and remand to allow the district court to determine whether appellant has exhausted his state court remedies. If so, or if the state has waived exhaustion, appellant seems to have stated claims appropriate for judicial resolution on the merits.
REVERSED and REMANDED.
. Magistrate's Order and Recommendation, Nov. 6, 1989, at 1.
. 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989).
. 490 U.S. at 494, 109 S.Ct. at 1927.
. 911 F. 2d 563 (11th Cir.1990).
. Id. at 568.
. Id.
. Id.
. See, e.g., Crank v. Duckworth, 905 F. 2d 1090, 1091 (7th Cir.1990) ("[A] person in custody [on a later sentence] may contend that that custody violates the Constitution if it was augmented because of an invalid [prior sentence].” (emphasis in original)); Feldman v. Perrill, 902 F. 2d 1445, 1449 (9th Cir.1990) (“[W]e are obliged to construe this pro se petition as an attack on petitioner’s current federal sentence as enhanced. As Feldman is still serving his parole term, he is ‘in custody’ under this sentence.”); Gamble v. Parsons, 898 F. 2d 117, 118 (10th Cir.), cert. denied, — U.S. -, 111 S.Ct. 212, 112 L.Ed.2d 172 (1990).
. See Record on Appeal, Tab 3, at 7; id., Tab 5, at 5.
. See Granberry v. Greer, 481 U.S. 129, 133-36, 107 S.Ct. 1671, 1674-76, 95 L.Ed.2d 119 (1987) (state failure to raise exhaustion in district court may, but does not always, waive exhaustion).
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van Zant v. Fla. Parole Comm'n, 104 F.3d 325 (11th Cir. 1997)…sentences by prior convictions for whieh the sentence has completely expired. White v. Butterworth, 70 F. 3d 573, 574 (11th Cir.1995), corrected, 78 F. 3d 500 (11th Cir.1996); Harper v. Evans, 941 F. 2d 1538, 1539 (11th Cir.1991); Battle v. Thomas, 923 F. 2d 165, 166 (11th Cir.1991). In order to meet the “in custody” requirement, the petitioner is deemed to be challenging the current sentence that has been enhanced by an expired conviction, rather that directly challenging the expired conviction. Therefor…
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Lowery v. United States, 956 F.2d 227 (11th Cir. 1992)…f challenging a present sentence as enhanced by the allegedly invalid prior conviction. We have already rejected this interpretation and have found a section 2254 proceeding appropriate for asserting a claim such as Lowery’s. See Battle v. Thomas, 923 F. 2d 165 (11th Cir.1991); Harper v. Evans, 941 F. 2d 1538, 1539 (11th Cir.1991); see also Allen v. Collins, 924 F. 2d 88, 89 (5th Cir.1991); Gamble v. Parsons, 898 F. 2d 117, 118-19 (10th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 212, 112 L.Ed.2d 172 (1990…
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White v. Butterworth, 70 F.3d 573 (11th Cir. 1995)…custody” and did not ask him to respond to the State’s procedural default arguments. Because White has not been given an opportunity to respond to any issues of exhaustion or proee-dural bar, we will not affirm on this ground. See Battle v. Thomas, 923 F. 2d 165, 166 (11th Cir.1991). For the foregoing reasons, we REVERSE the district court’s order dismissing White’s petition and REMAND the case for further proceedings consistent with this opinion. In light of this ruling, we DISMISS AS MOOT White’s appeal…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Granberry v. Greer, 481 U.S. 129 (U.S. 1987)
- Maleng v. Cook, 490 U.S. 488 (U.S. 1989)
- FOX v. Ira Kelso, 911 F.2d 563 (11th Cir. 1990)
- Crank v. Duckworth, 905 F.2d 1090 (7th Cir. 1990)
- Gamble v. Parsons, 898 F.2d 117 (10th Cir. 1990)
- Feldman v. Perrill, 902 F.2d 1445 (9th Cir. 1990)