IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30379
USDC No. CA-95-226-A-M2
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MICHAEL E. MEADER,
Plaintiff-Appellant,
versus
RICHARD L. STALDER, Warden,
Defendant-Appellee.
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Appeal from the United States District Court for the
Middle District of Louisiana
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(June 22, 1995)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
BY THE COURT:
Michael E. Meader's timely notice of appeal is construed as a
request for a certificate of probable cause (CPC). Meader's
motions for a certificate of probable cause (CPC) and to proceed in
forma pauperis on appeal are GRANTED.
The Supreme Court recently held, in a case where consecutive
prison sentences were imposed at the same time on separate counts
in a single indictment, that under 28 U.S.C. § 2254, a state
prisoner is "in custody" for any consecutive sentence until all of
the consecutive sentences are served. Garlotte v. Fordice, No. 94-
6790, 1995 WL 318633, at *2, *5 (U.S. May 30, 1995).
O R D E R
No. 95-30379
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Although the record is not clear, the report of the magistrate
judge, which was adopted by the district court and on the basis of
which it dismissed the habeas claims for want of jurisdiction,
reflects that when Meader was sentenced October 22, 1990, to the
terms of imprisonment he is now still serving, he still had 41 days
remaining time to serve on his 1987 conviction and sentence; the
1990 sentence was "consecutive to any time the petitioner had to
serve as a result of the revocation of the mandatory parole
supervision for his 1987 conviction." The habeas petition was
filed in February 1995, and attacks the 1987 sentence, and the
magistrate judge concluded there was no jurisdiction as plaintiff
was not "in custody" under the 1987 sentence: "the plaintiff is
presently attacking a sentence for which he is not correctly
incarcerated as the sentence for the 1987 conviction expired on or
about December 2, 1990." The district court and magistrate judge
did not have the benefit of Garlotte, which reversed a decision of
this Court. Accordingly, the district court's judgment dismissing
the habeas claim is vacated and that aspect of the cause is
remanded for reconsideration in light of Garlotte. Meader does not
challenge the district court's dismissal on limitations grounds of
his claims under 42 U.S.C. § 1983, and accordingly that portion of
the judgment below is affirmed.
AFFIRMED in part; VACATED and REMANDED in part
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