Lamarr Love v. J. W. Tippy ( 1997 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-2687
___________
Lamarr Love, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
J. W. Tippy, *
* [PUBLISHED]
Appellee. *
___________
Submitted: November 7, 1997
Filed: November 12, 1997
___________
Before WOLLMAN, LOKEN, and HANSEN, Circuit Judges.
___________
PER CURIAM.
In 1994, Lamarr Love was convicted of federal drug offenses in the
Northern District of Iowa and sentenced as a career offender to 270 months
in prison. Love filed this petition for a writ of habeas corpus in the
District of Minnesota, where he is presently incarcerated, alleging that
a 1988 Wisconsin state court conviction should not have been used to
enhance his federal sentence because it was infected by an
involuntary guilty plea and ineffective assistance of counsel. The
district court1 dismissed the petition with prejudice, and Love appeals.
We affirm.
First, construing Love's pro se petition as directly challenging his
Wisconsin conviction under 28 U.S.C. § 2254, the district court dismissed
it for lack of jurisdiction because Love completed serving the state
sentence before his federal conviction, so he is no longer in custody under
the state conviction. We agree. See Maleng v. Cook, 490 U.S. 488 (1989);
Charlton v. Morris, 53 F.3d 929, 929 (8th Cir.), cert. denied, 116 S. Ct.
328 (1995).
Second, construing Love's petition as also seeking to challenge the
validity of his federal sentence under 28 U.S.C. § 2255, the district court
held that a collateral attack on a prior sentence used to enhance this
federal sentence is barred by Custis v. United States, 511 U.S. 485 (1994),
as construed in Partee v. Hopkins, 30 F.3d 1011 (8th Cir. 1994), cert.
denied, 115 S. Ct. 1135 (1995). On appeal, Love urges us to modify the
district court's judgment to a dismissal without prejudice, no doubt
because § 2255 jurisdiction lies in the district court that sentenced him,
the Northern District of Iowa, rather than the district where he is
incarcerated. However, the district court's decision to deny § 2255 relief
was correct on the merits. Custis was a direct federal appeal. Therefore,
the Supreme Court's decision establishes that the enhancement issue Love
seeks to raise should have been raised at his sentencing and is now
procedurally defaulted, and that he may not collaterally attack the
Wisconsin conviction in this manner because it did not involve a failure
to appoint counsel. Because Love was sentenced in another district within
the Eighth Circuit, we will short-circuit a potential multiplicity of
meritless post-conviction proceedings by affirming the dismissal of his
petition for § 2255 relief with prejudice.
1
The HONORABLE DAVID S. DOTY, United States District Judge for the District
of Minnesota, adopting the report and recommendation of the HONORABLE
FRANKLIN L. NOEL, United States Magistrate Judge for the District of Minnesota.
-2-
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-