Holloway v. Smith ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ROBERT L. HOLLOWAY,
Petitioner-Appellant,
v.
No. 95-7737
WILLIAM L. SMITH, Warden; THE
ATTORNEY GENERAL OF THE STATE OF
MARYLAND,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-94-3155-AMD)
Submitted: February 13, 1996
Decided: April 8, 1996
Before WILKINS and LUTTIG, Circuit Judges, and BUTZNER,
Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Robert Holloway, Appellant Pro Se. John Joseph Curran, Jr., Attorney
General, Ann Norman Bosse, OFFICE OF THE ATTORNEY GEN-
ERAL OF MARYLAND, Baltimore, Maryland, for Appellees.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
The Appellant, Robert Holloway, appeals from the district court's
order denying relief on his second 28 U.S.C. § 2254 (1988) petition.
The district court dismissed the action without prejudice to allow Hol-
loway to refile this habeas petition if the state has not corrected its
sentencing error before he has satisfied the legal component of his
sentence and is illegally detained on an excessive consecutive sen-
tence.
Peyton v. Rowe1 allows Holloway to attack his future sentence now
because a prisoner serving the first of two consecutive sentences is "in
custody" under the aggregate term of imprisonment which encom-
passes the future as well as the present sentence. 2 While the evidence
shows and the state concedes that Holloway received a sentence lon-
ger than the law allows, McCleskey v. Zant, 499 U.S. 467 (1991), bars
Holloway's claim even though Peyton v. Rowe allows Holloway to
attack his future consecutive sentence. The Supreme Court held that
the determination of whether a successive petition was abusive should
be analyzed by the same standards as a procedural default,3 thus Hol-
loway must make a showing of cause and prejudice or a colorable
showing of factual innocence. Holloway does not meet the cause and
prejudice standard because unfamiliarity with the law and his pro se
status do not constitute adequate justification to excuse his failure to
present the claim earlier,4 nor does Holloway assert a colorable claim
of innocence. If Holloway could produce evidence of his innocence
then he would be entitled to a review on the merits of his claim. In
conclusion, Holloway could challenge the legality of a future sentence
_________________________________________________________________
1 Peyton v. Rowe, 391 U.S. 54 (1968).
2 Id. at 64-65.
3 McCleskey v. Zant, 499 U.S. 467, 493-96 (1991).
4 Miller v. Bordenkircher, 764 F.2d 245, 251-52 (4th Cir. 1985).
2
that he has not begun to serve but for the bar imposed by McCleskey
v. Zant.
Accordingly, we affirm the decision of district court. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
3