R E V I S E D
February 25, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-50147
_____________________
EDDIE LOUIS PLEASANT,
Petitioner-Appellant-Cross-Appellee,
v.
STATE OF TEXAS,
Respondent-Appellee-Cross-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________
February 20, 1998
Before KING, EMILIO M. GARZA, and DeMOSS, Circuit Judges.
PER CURIAM:
Petitioner-Appellant-Cross-Appellee Eddie Louis Pleasant
seeks federal habeas corpus relief pursuant to 28 U.S.C. § 2254,
alleging that he is presently serving a federal sentence that was
erroneously enhanced as a result of an invalid 1961 Texas robbery
conviction. The district court dismissed Pleasant’s petition on
the merits, finding that it was futile in relation to his federal
sentence. We vacate the judgment and remand the case to the
district court with instructions to dismiss it for lack of
subject matter jurisdiction because Pleasant is no longer “in
custody” of the State of Texas as required by § 2254.
I. FACTUAL & PROCEDURAL BACKGROUND
Eddie Louis Pleasant pled guilty to robbery in Texas court
in June 1961, and the court sentenced him to a term of
imprisonment of five to nine years. Pleasant did not appeal that
conviction, but in 1995 he filed an application for
postconviction relief in state court, arguing that his 1961
guilty plea was involuntary as a result of the ineffective
assistance of counsel. The Texas Court of Criminal Appeals
denied his application for relief.
In 1992, Pleasant pled guilty in federal district court to
possession of a firearm by a felon, and the court sentenced him
to a term of imprisonment of 180 months followed by a five-year
term of supervised release. This sentence was based, in part, on
an enhancement pursuant to 18 U.S.C. § 924(e) that was applicable
as a result of Pleasant’s 1961 Texas conviction.1 Pleasant
appealed, and a panel of this court affirmed the district court’s
judgment of conviction and sentence.
1
Section 924(e) states that a convicted felon who is
found to be in possession of a firearm in violation of 18 U.S.C.
§ 922(g) is subject to an enhanced penalty if he “has three
previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious drug
offense, or both, committed on occasions different from one
another.” 18 U.S.C. § 924(e)(1).
2
Pleasant then filed a petition for federal habeas corpus
relief pursuant to 28 U.S.C. § 2255 arguing that (1) his federal
trial counsel was ineffective for failing to investigate his
prior Texas convictions before allowing him to plead guilty and
(2) the district court’s reliance on his two prior invalid
convictions for sentencing enhancement purposes was a violation
of his right to due process. A panel of this court dismissed
Pleasant’s petition, finding that he had failed to raise any
nonfrivolous issues. See United States v. Pleasant, No. 94-50513
(5th Cir. Dec. 12, 1994) (unpublished).
Pleasant thereafter filed the instant petition for federal
habeas corpus relief pursuant to 28 U.S.C. § 2254, alleging that
he satisfies the statute’s “in custody” requirement because his
Texas conviction was used to enhance the federal sentence for
which he is currently incarcerated. Respondent-Appellee-Cross-
Appellant the State of Texas (the State) argued that the
application should be construed as a § 2255 petition and that the
warden of FCI Three Rivers, the federal institution where
Pleasant currently is incarcerated, should replace the State as
the respondent.
The district court declined to substitute the warden of FCI
Three Rivers for the State because it determined that Pleasant’s
federal sentence cannot be challenged until the Texas conviction
has been successfully challenged through a habeas corpus
proceeding. It therefore assigned the matter to a magistrate
3
judge “for disposition of non-dispositive pre-trial matters and
recommendations regarding case dispositive motions.”
The State thereafter filed a motion for reconsideration and,
alternatively, a motion to dismiss for lack of subject matter
jurisdiction. The district court denied the State’s motions, but
nevertheless dismissed Pleasant’s petition, holding that even a
successful challenge to the 1961 Texas conviction “would not
require alteration of his federal sentence as the validity of
that sentence has been fully litigated.” The district court
explained that, as Pleasant was barred from pursuing a successive
§ 2255 petition under the provisions of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132,
110 Stat. 1214, he would be unable to benefit from a successful
challenge to his 1961 Texas conviction.
Pleasant filed a notice of appeal and asked the district
court to issue a Certificate of Appealability (COA). The
district court denied the request, and the State filed a cross-
appeal from the district court’s order denying its motion to
substitute parties and its motion for reconsideration. This
court granted a COA on the issues of “1) whether Pleasant is ‘in
custody’ for purposes of challenging his 1961 state court
conviction; and 2) whether Pleasant would be entitled to file a
successive 28 U.S.C. § 2255 motion to correct his sentence if his
state conviction is invalidated or to seek relief pursuant to a
writ of coram nobis.”
4
II. DISCUSSION
Title 28, Section 2254 of the United States Code states, in
part,
The Supreme Court, a Justice thereof, a circuit
judge, or a district court shall entertain an
application for a writ of habeas corpus in behalf of a
person in custody pursuant to the judgment of a State
court only on the ground that he is in custody in
violation of the Constitution or laws or treaties of
the United States.
28 U.S.C. § 2254. This court has explained that § 2254 “affords
relief to a [habeas] petitioner ‘in custody pursuant to the
judgment of a state court.’” Dickerson v. Louisiana, 816 F.2d
220, 224 (5th Cir.), cert. denied, 484 U.S. 956 (1987). The
State argues that Pleasant does not meet the “in custody”
requirement of § 2254 because it no longer has custody of him.
The State therefore contends that this court lacks subject matter
jurisdiction over Pleasant’s § 2254 petition.
Pleasant contends that the federal courts have subject
matter jurisdiction over his § 2254 petition because he is
presently in custody in part because of the enhancement of his
federal sentence, which is based on his Texas conviction. He
therefore asserts that because he continues to suffer the
collateral consequences of that conviction, he is “in custody”
for purposes of § 2254. We disagree.
The Supreme Court addressed this issue in Maleng v. Cook,
490 U.S. 488 (1989). In Maleng, the petitioner, who was
5
currently incarcerated in a federal prison, contested a 1958
Washington state conviction for which the sentence had expired.
Id. at 489-90. He argued that the Washington conviction resulted
in enhancement of another Washington sentence that he would be
serving immediately following the expiration of his federal
sentence. Id.2 The Court held that a petitioner whose sentence
has expired is no longer “in custody” for purposes of that
conviction, even if it was used to enhance his current or future
sentences. Id. at 492. Thus, as Pleasant’s Texas sentence has
expired, he is no longer “in custody” pursuant to that conviction
for purposes of § 2254.
In Maleng, however, the petitioner was allowed to proceed on
the merits because the Court, in deference to the petitioner’s
pro se status, construed the petition as an attack on the later
Washington sentence which was yet to be served but which was
ensured by a detainer directing the petitioner to be delivered to
Washington authorities when his federal sentence expired. Id. at
493-94; accord Herbst v. Scott, 42 F.3d 902, 905 (5th Cir. 1995)
(construing the pro se petitioner’s attack on his expired Texas
sentence as an attack on the Texas conviction for which he was
currently incarcerated in order to find subject matter
jurisdiction).
2
He originally also contended that the 1958 Washington
conviction had been used to enhance his federal sentence, but
that argument was not addressed by the lower court and was not
presented to the Supreme Court.
6
In contrast, Pleasant is currently in federal custody and
has no unexpired Texas sentences. His Texas conviction therefore
may be challenged, if at all, only through a § 2255 petition
arguing that his federal sentence was illegally enhanced because
the Texas conviction was invalid and naming the warden of FCI
Three Rivers as the respondent.3 See Harris v. Ingram, 683 F.2d
97, 98 (4th Cir. 1982) (holding, in a similar situation, that a
challenge to federal custody on the basis of a prior state
conviction used for enhancement may only be made, if at all,
through a § 2255 petition); see also Charlton v. Morris, 53 F.3d
929, 929 (8th Cir. 1995) (holding that the district court lacked
3
We note that our holding in this case does not conflict
with this court’s prior decisions interpreting Maleng as having
“express[ed] no view on the extent to which [a prior] conviction
itself may be subject to challenge in [an] attack upon [current]
sentences which it was used to enhance,” and therefore allowing a
challenge of the expired sentence to be raised within an attack
on the current sentence. Allen v. Collins, 924 F.2d 88, 89 (5th
Cir. 1991) (alteration in original); see also Herbst, 42 F.3d at
905 (“The jurisdictional requirement of ‘in custody’ is satisfied
by reading the petition as a challenge to the current
conviction.”); Thompson v. Collins, 981 F.2d 259, 261 (5th Cir.
1993) (“[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.”).
In each of those cases, both the expired sentence and the
current sentences involved convictions under Texas law. See,
e.g., Herbst, 42 F.3d at 904; Thompson, 981 F.2d at 260; Allen,
924 F.2d at 88. Therefore, a § 2254 petition was the proper
vehicle for challenging either conviction, and the State of Texas
was the appropriate respondent for a challenge to either
sentence. Thus, where necessary, the court was able to construe
a challenge to the earlier conviction brought pursuant to § 2254
as a challenge to the sentence that the petitioner was currently
serving.
7
jurisdiction to address the merits of the petitioner’s § 2254
petition because he was no longer in custody pursuant to the
challenged state conviction).
Pleasant has insisted throughout this case that his petition
is not a mislabeled § 2255 petition challenging his federal
sentence, and he has vehemently argued against the substitution
of the warden of FCI Three Rivers. Although we construe the
pleadings of pro se litigants broadly in deference to their
status, Maleng, 490 U.S. at 493, we will not consider Pleasant’s
§ 2254 petition as a challenge to his federal sentence in the
face of his ongoing protestations that it is not. Moreover, in
contrast to the situations in Maleng and Herbst, in this case
such an assumption would require the substitution of a different
respondent and involves an entirely different sovereign power.
Cf. Craig v. Beto, 458 F.2d 1131, 1133 (5th Cir. 1972) (holding
that Texas was burdened with defending an attack on an expired
Oklahoma sentence that it used for sentencing enhancement
purposes). Thus, whether or not Pleasant is able to challenge
his current federal sentence by way of a § 2255 petition on the
basis that it was unconstitutionally enhanced as a result of the
1961 Texas conviction, we are without jurisdiction to hear a
§ 2254 petition directly challenging his Texas conviction.4
4
As it appears from the record that Pleasant has already
litigated one § 2255 motion, he may be barred from bringing a
second one under AEDPA. As that issue is not before us, however,
we express no opinion as to its merits.
8
As Pleasant has not successfully challenged his Texas
conviction, we express no opinion as to the second issue on which
we granted a COA--whether he would be entitled to file a
successive § 2255 petition or to seek relief pursuant to a writ
of coram nobis if his state sentence was invalidated.
III. CONCLUSION
For the foregoing reasons, we VACATE the district court’s
judgment denying Pleasant’s petition on the merits and REMAND the
case to the district court with instructions to DISMISS it for
lack of subject matter jurisdiction.
9