Opinion
C.A. No. 99-164-SLR
May 31, 2000
Attorney for Petitioner, Dashon A. Ames, pro se.
Loren C. Meyers, Esquire, Deputy Attorney General, of the Department of Justice, Wilmington, Delaware, attorney for respondent.
MEMORANDUM OPINION
I. INTRODUCTION
Petitioner Dashon A. Ames is an inmate at the Multi-Purpose Criminal Justice Facility ("MPCJF") in Wilmington, Delaware. (D.I. 2 at 2) In November 1998, petitioner instituted this action, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 with respect to his 1998 sentence for possession of a firearm during the commission of a felony. (D.I. 2) Petitioner seeks habeas corpus relief on a variety of grounds, specifically (1) ineffective assistance of counsel, (2)malicious prosecution, (3) judicial misconduct, and (4) "split venues." (D.I. 2) Petitioner does not specify which of his constitutional rights allegedly were violated. Respondents filed an answer, asserting that the court lacks subject matter jurisdiction to consider petitioner's application and, therefore, the petition must be dismissed. (D.I. 7) For the reasons stated below, the court will dismiss the petition and deny the requested relief.
II. BACKGROUND
In December 1995, the grand jury indicted petitioner on one count of possession of a firearm during the commission of a felony. (D.I. 9, December 18, 1995 Reindictment) Petitioner pled guilty to the charge on March 30, 1998. (D.I. 9, March 30, 1998 Truth in Sentencing Guilty Plea Form) Consistent with a plea agreement, petitioner was sentenced that day to three years imprisonment at Level V, followed by six months of supervision at Level II, the effective date of the sentence being July 12, 1995. (D.I. 9, March 30, 1998 Plea Agreement and Sentence Order) Petitioner did not appeal his conviction or sentence to the Delaware Supreme Court. Moreover, he did not file any applications for state post-conviction relief.
On August 3, 1998, petitioner was arrested on drug charges. (D.I. 9, August 1998 Indictment) Later that same month, a grand jury indicted petitioner on one count of possession of cocaine with intent to distribute and possession of cocaine within 1000 feet of a school. (D.I. 9, August 1998 Indictment) On October 7, 1998, petitioner pled guilty to possession with intent to distribute. (D.I. 9, October 7, 1998 Truth in Sentencing Guilty Plea Form) In addition, petitioner admitted that his August 1998 arrest constituted a violation of the probationary term imposed in March 1998. (D.I. 9, October 7, 1998 Truth in Sentencing Guilty Plea Form) That same day, the Superior Court for the State of Delaware sentenced petitioner to three years imprisonment for the drug offense, effective August 3, 1998, suspended after one year for two years probation. (D.I. 9, October 7, 1998 Plea Agreement and Sentence Order) With respect to the probation violation, the Superior Court adjudged petitioner guilty but discharged the violation as "unimproved." (D.I. 9, October 7, 1998 Sentence Order)
Petitioner's instant application for a writ of habeas corpus is dated November 15, 1998. (D.I. 2) The Clerk of the District Court received the petition on November 17, 1998. (D.I. 2)
III. DISCUSSION
Respondent contends that petitioner was not "in custody" under the challenged conviction (i.e., the 1998 conviction for possession of a firearm during the commission of a felony) at the time the petition was filed, as required by 28 U.S.C. § 2241 (c)(3) and 2254(a), and thus the court lacks jurisdiction to consider the application. A federal district court has jurisdiction to entertain petitions for habeas relief only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. § 2254(a) (stating that a writ of habeas corpus is available to persons "in custody pursuant to the judgment of a State court"). The United States Supreme Court has interpreted this language to require "that the habeas petitioner be `in custody' under the conviction or sentence under attack at the time his petition is filed." Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). According to the Supreme Court, when a conviction has fully expired, a habeas petitioner is not "in custody" just because the prior conviction might be used to enhance the sentence(s) imposed for any subsequent crime(s) of which he is convicted. See id. at 492. Although the concept of "in custody" extends beyond incarceration to parole on an unexpired sentence, it does not go so far as to include "the situation where a habeas petitioner suffers no present restraint from a conviction" at the time of the filing of the habeas petition. Id.
In the instant action, it is uncontested that at the time petitioner filed his application for federal habeas relief he was confined in the MPCJF, a Delaware correctional facility. The record reveals, however, that petitioner's incarceration stemmed from his October 1998 guilty plea and sentence, not the sentence he challenges in the instant petition. Rather, by November 1998, the sentence imposed for the March 1998 conviction had fully expired by virtue of the Superior Court's discharge of the probation violation. See State v. Beles, No. 96-06-0468, 1997 WL 366899 (Del.Super.Ct. Mar. 13, 1997). Thus, when he filed the instant application, petitioner suffered no "present restraint" from the March 1998 sentence. Maleng, 490 U.S. at 492; see also Gavin v. Wells, 914 F.2d 97 (6th Cir. 1990); Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir. 1989); Waldron v. Cowley, 880 F.2d 291 (10th Cir. 1989). Accordingly, the court concludes that habeas review of the March 1998 conviction is inappropriate. See Maleng, 490 U.S. at 489-92; cf. Peyton v. Rowe, 391 U.S. 54 (1968) and Garlotte v. Fordice, 515 U.S. 39 (1995) (holding that a prisoner who is serving an aggregate of several sentences is "in custody" on all of those sentences and may raise a habeas claim as to any of them).
The court notes that petitioner explicitly indicated in his petition that he was challenging the March 1998 sentence not the October 1998 sentence as enhanced by the allegedly invalid March 1998 guilty plea. Cf. Young v. Vaughn, 83 F.3d 72, 77-78 (3d Cir. 1996) (holding that a petitioner "may attack his current sentence by a habeas challenge to the constitutionality of an expired conviction if that conviction was used to enhance his current sentence"). Given the absence of any indication in the record at bar that petitioner's current sentence was enhanced by his prior conviction or that his current incarceration is a result of his prior conviction (e.g., a parole violation) and the restrictions in the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996), concerning the filing of successive or second habeas petitions, the court is unwilling to construe petitioner's application as challenging his current conviction.
IV. CONCLUSION
For the foregoing reasons, the court finds that it lacks subject matter jurisdiction to consider petitioner's application for federal habeas corpus relief. The petition, therefore, shall be dismissed and the writ of habeas corpus denied.