USCA1 Opinion
June 23, 1992 [NOT FOR PUBLICATION]
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No. 92-1479
KARL J. WHORF,
Plaintiff, Appellant,
v.
COMMISSIONER, DEPARTMENT OF CORRECTIONS,
MASSACHUSETTS, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Campbell, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Karl J. Whorf pro se on Application for Certificate of
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Probable Cause.
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Per Curiam. The district court dismissed petitioner's
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habeas corpus petition on the ground that petitioner was not
"in custody" and denied a certificate of probable cause.
Petitioner now seeks a certificate of probable cause to
appeal the dismissal.
Since petitioner's application challenged a fully
discharged sentence, we agree with the district court and
deny the certificate.
The relevant facts are as follows:
In November, 1978, petitioner received a twenty year
sentence to M.C.I., Concord, for armed robbery while masked
(the "Concord sentence"). He was granted parole from this
Concord sentence in January, 1980. In December, 1980, a
parole violation warrant issued.
In February, 1981, petitioner was indicted for three
armed robberies and assault with a dangerous weapon. He
pleaded guilty and, as entered in the mittimus on April 2,
1981, was sentenced to serve three concurrent five to ten
year terms at M.C.I., Walpole (now Cedar Junction) "from and
after sentences now serving," (the "Walpole sentences"). A
fourth sentence was suspended. At the time of petitioner's
commitment to M.C.I., Walpole, the parole violation warrant
from the Concord sentence was lodged against him as a
detainer.
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On December 15, 1988, petitioner moved to "correct" his
Walpole sentences with the objective of eliminating the
continuing vitality of the Concord sentence. Judge Abrams
(who had originally imposed the Walpole sentences) ordered
the mittimus "corrected" to read, "five to ten
years...forthwith from the sentence imposed on November 30,
1978 to M.C.I., Concord, nunc pro tunc as of April 2, 1981.".
The judge's "corrected sentences" were intended to have the
effect of extinguishing the time remaining to be served on
the petitioner's previous Concord conviction.
The state appealed. The Massachusetts Appeals Court
reversed and ordered the original mittimus reinstated, on the
grounds that Mass. R. Crim. P. 30(a) could not be used to
correct a misunderstanding by the judge of the consequences
of his action. Judge Abrams once again ordered the record
corrected, now under Mass. R. Crim. P. 42. The state again
sought review, now by writ of certiorari to the Supreme
Judicial Court. That court vacated the second "corrected"
sentence, again reinstating the original mittimus, on the
grounds that under Massachusetts law the judge's nunc pro
tunc correction was unlawful in that "a forthwith sentence to
state prison could not terminate or extinguish the
defendant's previously imposed sentence...".
In the meantime, the Walpole sentences were fully
discharged on March 2, 1989. The instant application for
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habeas corpus is directed at these Walpole sentences, raising
a variety of challenges to the underlying conviction and the
validity of petitioner's plea to the original indictments.
Under Maleng v. Cook, 490 U.S. 488 (1989), "once the
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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". Id. at 492.
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Accordingly, petitioner's application for a certificate
of probable cause to appeal is denied. Nothing herein
prevents petitioner from filing a new petition directed at
the Concord sentence, or any other sentence, provided he is
still "in custody" under it.
So ordered.
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