Shannon Rowan Willis v. James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division

E. GRADY JOLLY, Circuit Judge,

dissenting:

I respectfully dissent from the majority’s opinion.

The majority concludes that Willis is “in custody” for purposes of 28 U.S.C. § 2254 when he is attacking a conviction for which he is no longer serving a sentence and which was not used to enhance the conviction for which he is presently in custody. I respectfully suggest that the connection between the conviction Willis is actually challenging and the sentence that Willis is actually serving is too attenuated to meet the “in custody” requirement of § 2254.

Willis attacks a 1978 conviction; Willis is currently incarcerated for a 1989 conviction. This 1989 conviction was enhanced only by convictions in 1986 and 1987 — not by the 1978 conviction.1 If Willis were challenging either the 1986 or 1987 conviction as illegal, I could conclude that he is “in custody” because, reading his pro se habeas petition liberally, he would be chal*190lenging his 1989 sentence, which he is now serving, by attacking the conviction actually used to enhance it.

Willis, however, attempts to push one step further: Instead of attacking the 1986 or 1987 conviction, he attacks a 1978 conviction by which the 1986. and 1987 convictions/sentences were enhanced. In essence, Willis is seeking to attack a conviction for which he has completed his sentence and which was not used to enhance the conviction for which he is presently serving a sentence. We have never stretched the “in custody” requirement this far, and we should not do so today.

The majority apparently bases its conclusion that Willis has satisfied the custodial requirement of § 2254 on the “positive and demonstrable nexus” test expressed in Young v. Lynaugh, 821 F.2d 1133, 1137 (5th Cir.), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987), and cert. denied, 484 U.S. 1071, 108 S.Ct. 1040, 98 L.Ed.2d 1004 (1988). This “nexus” test is essentially nothing more than a weak “but for” test: But for the 1978 conviction, the 1986 and 1987 sentences would not have been enhanced, and but for the 1986 and 1987 convictions the 1989 sentence would not have been enhanced.

According to the majority, the Young-test is still viable despite the Supreme Court’s decision in Maleng v. Cook, 490. U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), because Young was thereafter “reaffirmed” in Allen v. Collins, 924 F.2d 88 (5th Cir.1991). The majority’s reliance on Allen, however, is misplaced. Although we did state that Young was unaffected by the Supreme Court’s decision in Maleng, our holding in Allen concerned only whether a distinction should be made between a void and voidable conviction; in fact, our holding was expressly limited to that issue. Allen, 924 F.2d at 89. Concerning the issue before us today, Allen states only that “[w]e have recognized a habeas petitioner’s right to challenge a prior conviction for which sentence had been completed when that conviction is used to enhance a subsequent sentence.” Id. (Emphasis added.) Furthermore, in Allen we specifically note that in an earlier opinion, Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir.1989), this court disallowed a collateral attack on a prior conviction when it was not used to enhance the petitioner’s current sentence.

In addition, a “but for” test such as the one urged by the majority is particularly ill-advised for a case such as this. It is clear that this unlimited standard could lead to abuse of the habeas proceeding. Here, Willis had previously been convicted of crimes in 1978, 1983, 1986, and 1987; obviously, he, had several opportunities to challenge the 1978 conviction, but he chose not to do so. Willis asserts no reason why he waited thirteen years to challenge the 1978 guilty plea; he, of course, knew the facts upon which his claim is based during the entire period. “It stands reason on its head to allow challenges to ancient convictions, foreclosed for years by prejudice-causing delay, to receive new life” from the consequences of one such occurrence. See Marks v. Estelle, 691 F.2d 730, 733 (5th Cir.1982), cert. denied, 462 U.S. 1121, 103 S.Ct. 3090, 77 L.Ed.2d 1351 (1983).

Finally, I should note our most current guidance on this issue of “in custody,” Thompson v. Collins, 981 F.2d 259, 261 (5th Cir.1993), states the following: “The Maleng holding does nothing more than establish that a habeas petitioner meets the ‘in custody’ requirement where he challenges a conviction used to enhance another conviction for which he is currently in custody.” (Emphasis added.) Thus, Mal-eng and post- Young opinions by this court have, I submit, rendered Young’s test — or any test, for that matter — unnecessary. Instead, the law may be applied straightforwardly: A habeas petitioner may challenge the conviction for which he is currently serving a sentence or the conviction that was used to enhance the conviction for which he is currently serving a sentence. Extending the “in custody” requirement of § 2254 any further would effectively “read the ‘in custody’ requirement out of the statute-” Maleng, 490 U.S. at 492, 109 *191S.Ct. at 1926. For these reasons, I respectfully dissent.

. Willis has completed his sentences for all but the 1989 conviction.