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United States Court of Appeals,
Fifth Circuit.
No. 92-7396
Summary Calendar.
Harvey F. GARLOTTE, Petitioner-Appellant,
v.
Kirk FORDICE, Governor, Respondent-Appellee.
Aug. 19, 1994.
Appeal from the United States District Court for the Southern
District of Mississippi.
Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.
PER CURIAM:
Petitioner Harvey F. Garlotte ("Garlotte") brings a habeas
corpus action pursuant to 28 U.S.C. § 2254, challenging a 1985
state conviction for possession of marijuana. The district court,
adopting the magistrate judge's Report and Recommendation,
dismissed the petition for failure to exhaust state remedies
without requiring the respondent to file an answer. We granted
Garlotte's request for a Certificate of Probable Cause, ordering
Respondent Kirk Fordice ("Fordice") to brief the issue whether the
district court prematurely dismissed Garlotte's petition without
requiring an answer or conducting an evidentiary hearing.
Concluding that under recent United States Supreme Court precedent
Garlotte was not "in custody" for purposes of § 2254, we affirm the
district court's dismissal of the petition, but on the separate
ground of lack of jurisdiction pursuant to 28 U.S.C. § 2254.
FACTS AND PROCEDURAL HISTORY
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In 1985, Garlotte pleaded guilty to one count of possession
with intent to deliver or sell one ounce or less of marijuana and
was sentenced to three years imprisonment. On the same day he
pleaded guilty to two counts of murder and received two life
sentences, which the court ordered to run concurrently. The court
also ordered that the concurrent life sentences were to run
"consecutive, and after" the three year marijuana conviction.
Garlotte did not appeal his marijuana conviction, and his two state
post-conviction motions were denied. He is currently eligible for
parole consideration on March 1, 1996.
In 1989, Garlotte filed a federal petition for habeas corpus
relief challenging the 1985 marijuana conviction. Fordice filed a
motion to dismiss for failure to exhaust state habeas remedies, and
the magistrate judge recommended that the petition be dismissed
with prejudice. The district court remanded the matter to the
magistrate for reconsideration.
On remand, the magistrate recommended dismissing the petition
without requiring Fordice to file an answer, concluding that
although it was unclear whether Garlotte had exhausted his state
remedies, even if they were unexhausted the requirement should be
waived because exhaustion would be futile. After reviewing the
magistrate's Report and Recommendation, the district court adopted
it, dismissed the petition, and denied Garlotte's request for a
Certificate of Probable Cause.
DISCUSSION
For the first time on appeal, Fordice argues Garlotte's
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habeas petition should be dismissed for lack of subject matter
jurisdiction because he is not "in custody" within the meaning of
28 U.S.C. § 2254. A challenge to subject matter jurisdiction may
be raised for the first time on appeal because it may not be
waived. Hensgens v. Deere & Co., 833 F.2d 1179, 1180 (5th
Cir.1987), cert. denied, 493 U.S. 851, 110 S.Ct. 150, 107 L.Ed.2d
108 (1989). Therefore, we address the question of whether Garlotte
is "in custody" under the 1985 marijuana conviction.
Federal district courts lack subject matter jurisdiction to
entertain § 2254 actions if, at the time the petition is filed, the
petitioner is not "in custody" under the conviction or sentence
which the petition attacks. Maleng v. Cook, 490 U.S. 488, 491, 109
S.Ct. 1923, 1925, 104 L.Ed.2d 540 (1989); see also Hendrix v.
Lynaugh, 888 F.2d 336 (5th Cir.1989). Fordice argues that under
Maleng, Garlotte is not "in custody" because his three year
sentence for the marijuana conviction was fully expired before he
filed his habeas petition with the district court. Specifically,
Fordice contends that according to Garlotte's records at the
Mississippi Department of Corrections, he was discharged from the
marijuana conviction on June 1, 1986. He did not file his petition
for habeas relief in federal court until 1989, after he was already
serving time for the two concurrent life sentences for murder.
Therefore, because the marijuana conviction he now attacks was not
used for enhancement purposes for the concurrent life sentences for
murder, and because the marijuana conviction is fully expired,
Garlotte is not "in custody" for purposes of § 2254.
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Garlotte does not challenge Fordice's contention that his
three year marijuana sentence has expired, but argues instead that
the Supreme Court's decision in Peyton v. Rowe, 391 U.S. 54, 88
S.Ct. 1549, 20 L.Ed.2d 426 (1968), holding that a prisoner serving
consecutive sentences is "in custody" under any one of the
sentences, controls this case. Garlotte further argues that there
exists a "positive and demonstrable" nexus between his current
custody under the murder sentences and the prior marijuana
conviction such that his challenge meets the jurisdictional
requirements of § 2254. Willis v. Collins, 989 F.2d 187 (5th
Cir.1993), quoting Young v. Lynaugh, 821 F.2d 1133, 1137 (5th
Cir.1987), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d
501 (1987), and cert. denied, 484 U.S. 1071, 108 S.Ct. 1040, 98
L.Ed.2d 1004 (1988). Specifically, he contends that but for his
marijuana conviction, he would have been eligible for parole
consideration on June 5, 1995, instead of March 1, 1996.
This Court has held that a petitioner can challenge a fully
expired sentence if the expired sentence delayed the time for which
the petitioner could receive credit for time served on the current
sentence. Cappetta v. Wainwright, 406 F.2d 1238, 1239 (5th Cir.),
cert. denied, 396 U.S. 846, 90 S.Ct. 55, 24 L.Ed.2d 96 (1969).
Since Cappetta, however, the Supreme Court stated in Maleng:
We have never held, however, that a habeas petitioner may be
"in custody" under a conviction when the sentence imposed for
that conviction has fully expired at the time the petition is
filed.
Maleng, 490 U.S. at 491, 109 S.Ct. at 1925 (emphasis in original).
Therefore, to the extent that the Supreme Court's decision in
4

Maleng is in conflict with this Court's decision in Cappetta, we
now follow the rule established by Maleng.
In Peyton, the Supreme Court held that a petitioner who was
serving consecutive sentences imposed by the state court is "in
custody" under any one of those sentences. Peyton, 391 U.S. at 67,
88 S.Ct. at 1556. Unlike Garlotte, however, the petitioners in
Peyton were challenging a sentence they had not yet begun to serve.
Garlotte attempts only to challenge a sentence that is "fully
expired" under the definition established by the Supreme Court in
Maleng. Therefore, Garlotte's challenge to his "fully expired"
marijuana conviction is not controlled by the Supreme Court's
decision in Peyton because he is not attempting to challenge a
sentence he has not yet begun to serve.
As for Garlotte's contention that because his parole
consideration date has been delayed by the marijuana conviction a
nexus exists between the marijuana conviction and the murder
conviction, we find that this argument too must fail. As the
Supreme Court stated in Maleng:
[O]nce the sentence imposed for a conviction has completely
expired, the collateral consequences of that conviction are
not themselves sufficient to render an individual "in custody"
for the purposes of a habeas attack upon it.
Maleng, 490 U.S. at 492, 109 S.Ct. at 1926. Because Garlotte's
parole delay merely constitutes a collateral consequence of his
marijuana conviction, he has failed to allege a "positive and
demonstrable" nexus between the marijuana conviction and the murder
sentences he is now serving in order to meet the requirements of
the Maleng exception established by this Court in Willis. Having
5

found that Garlotte is not "in custody" for purposes of subject
matter jurisdiction, we decline to address the other issues he
raises in his petition. Accordingly, we AFFIRM the district
court's dismissal, but on the separate ground of the district
court's lack of jurisdiction pursuant to 28 U.S.C. § 2254.

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