Crandall v. Bowersox , 131 F. App'x 639 ( 2005 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 16 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
LOUIE CRANDALL,
Petitioner-Appellant,
v. No. 04-3488
(D. Kan.)
MICHAEL BOWERSOX; AL (D.Ct. No. 04-CV-3370-SAC)
LUEBBERS,
Respondents-Appellees.
ORDER
Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.
Appellant Louie Crandall, a Missouri state inmate appearing pro se, appeals
the district court’s decision dismissing his habeas corpus petition, filed pursuant
to 28 U.S.C. § 2254, concerning his Kansas conviction and sentence which has
been fully discharged. We deny Mr. Crandall’s request for a certificate of
appealability and dismiss his appeal.
The procedural history surrounding Mr. Crandall’s Kansas state conviction
and sentence and his prior federal habeas corpus petitions is more fully outlined
in the record and the federal district court’s October 27, 2004 Order. In short, in
1993, Mr. Crandall received a fourteen-month sentence after pleading guilty in
Kansas state court to a felony charge of obstructing legal process. Thereafter, he
waived extradition to Missouri, where he was convicted and sentenced on other
charges, and where he agreed to serve the remainder of his Kansas sentence.
Mr. Crandall twice filed federal petitions for habeas corpus relief from his
Kansas conviction. Both times, the federal district court denied the petitions
without prejudice for failure to exhaust his state post-conviction remedies, and we
denied him a certificate of appealability. See Crandall v. Bowersox, 208 F.3d
225, 2000 WL 300209 at *1 (10th Cir. Mar. 23, 2000) (unpublished op.). On
October 19, 2004, Mr. Crandall filed the instant habeas corpus petition,
explaining he exhausted his state post-conviction remedies, and therefore could
challenge his Kansas conviction on the various issues contained in his petition.
In an order dated October 27, 2004, the federal district court noted the
Kansas district court entered a decision dismissing his state habeas petition for
lack of jurisdiction, based on the fact Mr. Crandall’s fourteen-month Kansas
sentence expired in September 1995, which the Kansas Court of Appeals
thereafter affirmed. See Crandall v. State, 91 P.3d 552, 2004 WL 1373300 (Kan.
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Ct. App. June 11, 2004) (unpublished op.). After acknowledging Mr. Crandall
sought to overturn his Kansas conviction because it was used to enhance his
current Missouri sentence, the district court nevertheless dismissed his § 2254
petition, concluding it lacked jurisdiction, and citing, in support, Maleng v. Cook,
490 U.S. 488, 490-91 (1989) (per curiam), for the proposition that federal habeas
corpus relief can only be invoked when the prisoner is in custody at the time a
petition is filed.
Following the district court’s October 27, 2004 Order, Mr. Crandall filed a
motion for rehearing and reconsideration, which the district court considered as a
motion to alter and amend the judgment and denied in an order dated November
17, 2004. The district court granted Mr. Crandall’s motion for leave to proceed in
forma pauperis on appeal, but denied his application for a certificate of
appealability. In appealing the district court’s orders, Mr. Crandall claims the
district court erred in determining it lacked jurisdiction to rule on his § 2254
habeas petition because his sentence was fully served. Even though his initial
fourteen-month sentence has been served, he claims the state court should have
voided that sentence and resentenced him.
Under § 2254, both this court and the district court may only “entertain an
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application for a writ of habeas corpus in behalf of a person in custody pursuant
to the judgment of a State court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United States.” See 28
U.S.C. § 2254(a). As a result, like the district court, this court lacks jurisdiction
over Mr. Crandall’s habeas petition, as he was not in custody when his instant
petition was filed. The fact Mr. Crandall is attempting to overturn his Kansas
conviction because it was used to enhance his Missouri sentence does not change
the result. We have held that “even if the fully-expired conviction, has, in fact
been used to enhance a subsequent sentence, it may not be attacked directly in a
habeas action. Rather the attack must be directed toward the enhanced sentence
under which the defendant is in custody.” Harvey v. Shillinger, 76 F.3d 1528,
1537 (10th Cir. 1996) (relying on Maleng, 490 U.S. at 491-92).
Thus, for the foregoing reasons, we DENY Mr. Crandall’s request for a
certificate of appealability and DISMISS his appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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