Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

United States Court of Appeals,
Fifth Circuit.
No. 91-6109.
Lawrence Edward THOMPSON, Petitioner-Appellant,
v.
James A. COLLINS, Director, Texas Dept. of Criminal Justice, Institutional Division,
Respondent-Appellee.
Jan. 21, 1993.
Appeal from the United States District Court for the Southern District of Texas.
Before REAVLEY, SMITH and EMILIO M. GARZA, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
I.
Lawrence Edward Thompson brought this habeas corpus action to challenge his 1974 Texas
conviction for burglary. The district court dismissed the petition for lack of jurisdiction because
Thompson was not "in custody" as required by 28 U.S.C. § 2254. We reversed and remanded for
further proceedings, liberally construing Thompson's petition as a challenge to his 1978 conviction,
which was enhanced by his 1974 conviction.1 In reliance upon Maleng, we held that a prisoner meets
the "in custody" requirement under these circumstances. Maleng holds that a prisoner may challenge
a conviction for which he is presently incarcerated and which was potentially enhanced by an
unconstitutional prior conviction. 490 U.S. at 492, 109 S.Ct. at 1925. At the same time, the Court
held that a prisoner whose sentence has fully expired before he files his habeas petition does not meet
the "in custody" requirement. Id.
On remand, the district court for the Northern District of Texas transferred the case to the
Southern District of Texas, the proper venue for a challenge to the 1978 conviction. On September
13, 1991, the district court again dismissed Thompson's petition for lack of jurisdiction, holding that
1Our previous opinion referred to the 1978 action's being enhanced by a 1958 conviction. The
panel apparently confused the facts of Thompson's case with those of Maleng v. Cook, 490 U.S.
488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam).

Thompson's sentence for his 1978 conviction had expired and that under Maleng, the district court
no longer had jurisdiction because Thompson was no longer in custody. We granted Thompson a
certificate of probable cause to appeal.
II.
Thompson argues that the district court erred in dismissing his petition because his sentence
had not expired at the time he filed his original petition. Relying upon Maleng, Thompson contends
that he meets the "in custody" requirement so long as he was in custody when he filed his original
petition. We disagree. Maleng merely restated the holding in Carafas v. LaVallee, 391 U.S. 234,
238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968), in which the Court held that a petitioner who was
in custody pursuant to a conviction when he filed his petition satisfied the "in custody" requirement
even though he was released prior to completion of the litigation.
In Escobedo v. Estelle, 655 F.2d 613 (5th Cir. Unit A Sept.1981) (per curiam), we declined
to extend the Carafas holding to a scenario similar to Thompson's. Escobedo had challenged a 1970
conviction used to enhance his 1977 conviction, for which he was incarcerated when he filed his
petition. While the case was pending, Escobedo's sentence expired. We held that Escobedo no
longer met the "in custody' requirement:
... [A] habeas petitioner does not meet the statutory "in custody" requirement when he is no
longer (and was not at the time he filed his petition) in custody pursuant to the conviction he
attacks, and neither is he presently in custody pursuant to another conviction that is positively
and demonstrably related to the conviction he attacks; this is so despite the fact that he was
in custody pursuant to the positively and demonstrably related conviction at the time he filed
his petition.
Id. at 616-17.
We conclude that Maleng did not disturb this holding. Maleng, again, only restated the rule
of Carafas, which we distinguished in Escobedo. The Maleng holding does nothing more than
establish that a habeas petitioner meets the "in custody" requirement where he challenges a conviction
used to enhance another co nviction for which he is currently in custody. In this circuit, we first
recognized this principle in Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir.1979), cert. denied,
444 U.S. 1023, 100 S.Ct. 684, 62 L.Ed.2d 656 (1980). In Escobedo, we concluded that the rules
in Carafas and Sinclair could not be combined. 655 F.2d at 616. Because Maleng does not affect

our Escobedo holding, we conclude that the district court properly dismissed Thompson's petition.
We need not decide whether Thompson's case became moot when his 1978 sentence expired.
We observe only that the collateral consequences saving the petitioner's claim in Carafas from
mootness do not seem to be implicated where, as here, the petitioner has been convicted of multiple
felonies. Also, we express no opinion as to whether the present petition deprives the district court
of jurisdiction in a parallel petition Thompson filed to attack his 1978 conviction.
We AFFIRM the judgment of the district court dismissing Thompson's habeas petition.