Harvey v. Shillinger

PUBLISH

_____

UNITED STATES COURT OF APPEALS
Filed 2/26/96
TENTH CIRCUIT

_____

JETTY LEE HARVEY, )
)
Petitioner-Appellant, )
)
v. ) No. 95-8011
)
DUANE SHILLINGER, Warden, Wyoming )
State Penitentiary; ATTORNEY )
GENERAL OF THE STATE OF WYOMING, )
)
Respondents-Appellees. )

______

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. No. 93-CV-106)
______

Mary Beth Wolff (William U. Hill, Attorney General with her on the
briefs), Special Assistant Attorney General, Cheyenne, Wyoming, for
appellees.

Howard A. Pincus (Michael G. Katz, Federal Public Defender with him
on the briefs), Assistant Federal Public Defender, Denver,
Colorado, for appellant.
______

Before KELLY, BARRETT and JONES*, Circuit Judges.
______

BARRETT, Senior Circuit Judge.

______

*The Honorable Nathaniel R. Jones, Senior Circuit Judge, United
States Court of Appeals for the Sixth Circuit, sitting by
designation.
______
 Jetty Lee Harvey (Harvey) appeals from the district court’s

order of February 1, 1995, Harvey v. Shillinger, 893 F. Supp. 1021

(D. Wyo. 1995)(Harvey III), dismissing his petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254.

Facts

On January 9, 1986, Harvey and two others were charged in the

District Court, Third Judicial District, Sweetwater County,

Wyoming, with kidnapping and sexual assault in the first degree or

aiding and abetting in those offenses. Following a three-day jury

trial in July, 1987, Harvey was convicted of all charges. At

sentencing, on October 23, 1987, the trial court asked Harvey if he

had anything to say in mitigation of punishment. After being sworn

in, Harvey made an allocution statement to the trial court under

oath. He was subsequently sentenced to not less than twenty years

nor more than thirty years imprisonment on each charge, to run

concurrently.

On direct appeal to the Wyoming Supreme Court, Harvey’s

convictions were vacated on speedy trial grounds. See Harvey v.

State, 774 P.2d 87 (Wyo. 1989) (Harvey I).

On July 7, 1989, Harvey was charged with conspiracy to commit

kidnapping and conspiracy to commit sexual assault. After a plea

agreement fell through and the Wyoming Supreme Court denied a writ

of prohibition, Harvey proceeded to trial on the conspiracy

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charges. At trial, the prosecution read portions of Harvey’s

allocution statement made at his first sentencing hearing in

evidence, including the following:

I meant this woman no harm. In fact, I even stopped
her from being harmed at the end. But before that, there
was--I even tried stopping. I tried resisting long
before she was even abducted. Everett was just insistent
from two blocks past her to two blocks to her, telling me
to grab her. Grab her. And I was saying, ‘No. I don’t
want this.’ And even when I pulled up beside her and I
rolled down my window, she walked by. I just asked her
if she wanted a ride because it was cold. She never
looked at me. She never answered. She just kept her
head down, her hands in her coat pocket and she walked
by. And I turned to Everett and I said, ‘See, she
doesn’t even want a ride.’ And he says, ‘No. All you got
to do is grab her.’ He throws it into reverse and backs
up past the woman, slapping me, ‘Just grab her. Grab
her.’ And that’s when I finally broke down on it there.
I got out and stepped out in front of her. She walked up
to me, lifted her head, looked at me and I said, ‘Hey,
look. Just get in and we’ll give you a ride home.’ And
she turned and walked around me. And that’s when I heard
Everett say, ‘Grab her, chicken shit.’ And that was the
final straw of the dare.

I turned and grabbed her by the coat, the shoulder,
pulled her off her feet toward the pickup. Picked her up
and put her in the vehicle. She was laying between the
seats with her hands up like this. She was saying,
‘Don’t hurt me.’ I said, ‘No one is going to hurt you.’
She relaxed. I turned back to roll up my window and she
starts kicking the dash with her boots and hollering,
‘Don’t hurt me. Don’t hurt me.’ I grabbed her legs by
the boots and I said, ‘Don’t worry. No one is going to
hurt you.’1

1
At his request, this portion of Harvey’s allocution
statement, which had been excised by the district court, was also
read to the jury:

She relaxed. I let go, turned back and finished
rolling up the window. The woman got up into the back
seat. She started a conversation which was, like, ‘You

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 And then Everett Phillips--I don’t know where we
were going. He pulls into this trailer park and start
hollering, ‘I want some. I want some.’ I says, ‘No,
Everett. Let’s take the woman home.’ And he goes,
‘Well, the bitch can suck it.’ And I grabbed his arm
then and I said, ‘No, Everett. We’re taking her home.
Let’s go.’ And that is when I saw a cop car go by
through the window. And I said, ‘Now there is a cop.
Let’s just take her home.’

And when we stopped, the cops, I didn’t even know it
was cops. I could see lights in the mirror. Everett got
out and went back to them. He was gone for, anyway, two
minutes and there was no struggle in the back. There was
no one hollering, screaming. I just looked in the
mirror. And then as I’m looking in the mirror back a
couple of minutes or so, this woman, Sharon Brouillette,
she got between the seats and started headed for the
driver’s door. And I just stepped out of the truck. And
the police officer told me to stop and put my hands on
the camper. That’s just what I done until after the
fight with David Swazo. They cuffed us and took us to
jail. But, at the time of all of this, there was a real-
-there was a big factor too of very drunk.

(Exhibits to Motion to Supplement the Record, Exhibit B at 1168-

1170).

On January 17, 1990, following a jury trial, Harvey was

convicted of conspiracy to commit kidnapping and acquitted of

conspiracy to commit sexual assault. He was sentenced to twelve to

fifteen years in the Wyoming State Penitentiary.

Harvey appealed his conspiracy conviction to the Wyoming

guys from Texas?’ And we just kind of smiled. I looked
at David. And she says--looks at David and leans up
against him and says to him, ‘You’re kind of cute.’
And they actually kissed at that time. She took her
coat off and I quit watching from that point on. We
just drove.

(Exhibits to Motion to Supplement the Record, Exhibit B at 1172).

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Supreme Court alleging, inter alia, double jeopardy, speedy trial

violation, violation of right to an impartial jury, and improper

use of his allocution statement. On June 11, 1992, the Wyoming

Supreme Court affirmed his conspiracy conviction. See Harvey v.

State, 835 P.2d 1074 (Wyo.), cert. denied, 506 U.S. 1022 (1992)

(Harvey II).

On April 5, 1993, Harvey petitioned the federal district court

for a writ of habeas corpus alleging: improper use of his

allocution statement made at the sentencing phase of his first

trial; ineffective assistance of counsel at his first sentencing;

denial of his right to speedy trial; double jeopardy; and Wyoming

Supreme Court Justice Thomas’ participation in the second appeal

violated “fundamental fairness” principles.

On February 1, 1995, the district court dismissed Harvey’s

petition. See Harvey III, 893 F. Supp. 1021. The district court

found that: the use of Harvey’s allocution statement at his

conspiracy trial was not error because he “voluntarily, knowingly,

and intelligently waived his right against self-incrimination at

his first sentencing hearing,” id. at 1030; Harvey’s was not denied

effective assistance of counsel; “prosecution of [Harvey] on

conspiracy charges after his conviction for the substantive

offenses, does not violate double jeopardy principles,” id. at

1032; Harvey’s right to a speedy trial was not violated; and

Justice Thomas’ participation in Harvey’s direct appeal did not

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violate his right to due process. We agree.

Issues

On appeal, Harvey contends that the district court erred in

dismissing his petition for a writ of habeas corpus because: (1)

his conspiracy conviction violated the principles of double

jeopardy; (2) his Sixth Amendment right to a speedy trial was

violated; (3) the use of his allocution statement violated his

Fifth Amendment and Fourteenth Amendment rights; and (4) trial

counsel’s failure to advise him of the consequences of making an

allocution statement at his first sentencing hearing deprived him

of his Sixth Amendment right to effective assistance of counsel.2

We review a district court’s legal conclusions in dismissing

a petition for a writ of habeas corpus de novo. Ballinger v. Kerby,

3 F.3d 1371, 1374 (10th Cir. 1993). “Legal conclusions and mixed

questions of law and fact are reviewed de novo, although findings

of fact underlying mixed questions are accorded the presumption of

correctness.” Manlove v. Tansy, 981 F.2d 473, 476 (10th Cir.

1992).

2
Harvey’s original pro se petition raised issues (1),
(3), and (4). After counsel was appointed, issue (2) was added.
Due to the inadequate supplemental briefing, we will address
issues (3) and (4) according to Harvey’s pro se petition which we
review under a liberal standard. See Jones v. Cowley 28 F.3d
1067, 1069 (10th Cir. 1994).

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 Discussion

I. Double Jeopardy

Harvey contends that his second trial and conviction for

conspiracy to commit kidnapping after the Wyoming Supreme Court

vacated his convictions for kidnapping and sexual assault violates

the Double Jeopardy Clause of the Fifth Amendment.

The Double Jeopardy Clause provides: “[N]or shall any person

be subject for the same offense to be twice put in jeopardy of life

or limb.” In United States v. Felix, 503 U.S. 378, 380-81 (1992),

the Supreme Court held that “prosecution of a defendant for

conspiracy, where certain of the overt acts relied upon by the

Government are based on substantive offenses for which the

defendant has been previously convicted, does not violate the

Double Jeopardy Clause.” See also Pinkerton v. United States, 328

U.S. 640, 643 (1946) (“[T]he commission of the substantive offense

and a conspiracy to commit it are separate and distinct offenses .

. . [a]nd the plea of double jeopardy is no defense to a conviction

for both offenses.”).

Accordingly, we hold that prosecuting Harvey on conspiracy

charges after his convictions for the substantive offenses were

vacated did not violate his right to be protected from double

jeopardy.

II. Speedy Trial

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 Harvey contends that he was denied his Sixth Amendment right

to a speedy trial by the delay between his original arrest on the

substantive offenses on January 5, 1986, and his second trial on

the conspiracy charges on January 8, 1990.

“A Sixth Amendment speedy trial claim is assessed by balancing

the length of the delay, the reason for the delay, whether the

defendant asserted his right to a speedy trial, and whether the

delay prejudiced the defendant.” United States v. Dirden, 38 F.3d

1131, 1138 (10th Cir. 1994) (quoting United States v. Tranakos, 911

F.2d 1422, 1427 (10th Cir. 1990)). See Barker v. Wingo, 407 U.S.

514, 530 (1972) (identifying four factors in speedy trial balancing

test). While no single factor is “either a necessary or sufficient

condition to the finding of a deprivation of the right to a speedy

trial,” Barker, 407 U.S. at 533, “the length of the delay is to

some extent a triggering mechanism.” Id. at 530. Only if the

period of delay is “presumptively prejudicial” need we inquire into

the other factors. Id.; Dirden 38 F.3d at 1137; Tranakos, 911 F.2d

at 1427.

In determining whether a delay is “presumptively prejudicial,”

we have not drawn a bright line beyond which pretrial delay will

trigger a full Barker analysis because “the length of delay that

will provoke such an inquiry is necessarily dependent upon the

peculiar circumstances of the case.” Barker, 407 U.S. at 530-31.

See Dirden, 38 F.3d at 1138 (seven and one-half month delay between

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arraignment and trial not “presumptively prejudicial”); United

States v. Occhipinti, 998 F.2d 791, 798 (10th Cir. 1993) (delay of

172 days insufficient to trigger Barker analysis); United States v.

Kalady, 941 F.2d 1090, 1095-96 (10th Cir. 1991) (eight month delay

between indictment and trial nonprejudicial); United States v.

Bagster, 915 F.2d 607, 611 (10th Cir. 1990) (delay of thirty months

insufficient to trigger Barker analysis). But see Perez v.

Sullivan, 793 F.3d 249, 255 (10th Cir.) (fifteen month delay

triggered Barker analysis), cert. denied, 479 U.S. 936 (1986).

In addition, the right to a speedy trial “attaches only when

a formal criminal charge is instituted and a criminal prosecution

begins.” United States v. MacDonald, 456 U.S. 1, 6 (1982). Hence,

“[o]nce charges are dismissed, the speedy trial guarantee is no

longer applicable.” Id. at 8.

Because Harvey’s original convictions were vacated and

conspiracy to commit kidnapping3 is a separate offense, see part

I., the speedy trial clock for Harvey’s second trial did not start

to run until the first filing relating to the conspiracy charge.

Thus, the relevant time period is from the filing of the indictment

on the conspiracy charge on July 7, 1989, until the date of the

conspiracy trial on January 8, 1990, 185 days or approximately six

months.

3
Harvey was acquitted of conspiracy to commit sexual
assault; thus, we are only concerned with the charge of
conspiracy to commit kidnapping on which we was convicted.

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 This period is further reduced by two delays attributable to

Harvey. See Dirden, 38 F.3d at 1138 (delays attributable to the

defendant do not weigh against the government). First, Harvey

filed a petition for a writ of prohibition with the Wyoming Supreme

Court on July 25, 1989, which was denied on September 18, 1989.

See State ex rel. Harvey, 779 P.2d 291 (Wyo. 1989). This is a span

of fifty-five (55) days. Second, on December 18, 1989, an order

certifying questions to the Wyoming Supreme Court on Harvey’s

motion was entered. The Wyoming Supreme Court remanded the case to

the district court with the questions unanswered on January 2,

1990. This is a span of fifteen (15) days. Therefore, the time

from the filing of the complaint to the date of trial, with time

deducted for delays attributable to Harvey, is 115 days.

Based upon the circumstances of this case and application of

the speedy trial factors outlined in Barker, we conclude that the

115-day time span between the filing of the complaint and the date

of the start of the trial was neither “presumptively prejudicial”

nor significantly long. Thus, under Barker, we need not analyze

the speedy trial issue further. Accordingly, Harvey was not denied

his right to a speedy trial.

III. Allocution Statement

Harvey challenges the use of his allocution statement as

evidence of guilt in his conspiracy trial. Harvey contends that

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his allocution statement was not made voluntarily and that he did

not know the rights he was giving up by making the statement.

Under 28 U.S.C. § 2254(a) an application for a writ of habeas

corpus to disturb a state court judgment may issue only if it is

found that the applicant is “in custody pursuant to the judgment of

a State court . . . in violation of the Constitution or laws or

treaties of the United States.” Thus, the only injury that will

suffice to support a petition for habeas corpus relief is an injury

to a petitioner’s federally protected right; state law injuries

cannot and do not suffice. Pulley v. Harris, 465 U.S. 37, 41

(1984).

While Wyoming has recognized the right to make a statement in

mitigation of a fine or punishment as constitutionally protected,

see Christy v. State, 731 P.2d 1204, 1207 (Wyo. 1987), under

federal law, the right to allocution is not constitutionally

protected. Hill v. United States, 368 U.S. 424, 428 (1962); United

States v. Gardner, 480 F.2d 929, 932 (10th Cir.), cert. denied, 414

U.S. 977 (1973). Rather, it is a right delineated by Fed. R. Cr.

P. 32(c)(3)(C)4, the violation of which is not subject to

collateral attack as unconstitutional. Hill, 368 U.S. at 426.

4
Fed. R. Cr. P. 32(c) (3)(C) provides that:
(3) Imposition of Sentence. Before imposing
sentence, the court must:
* * *
(C) address the defendant personally and determine
whether the defendant wishes to make a statement and to
present any information in mitigation of the sentence;

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Therefore, the fundamental issue here is not whether Harvey’s right

to allocution was violated, but whether his right to due process

was violated by forcing him to choose between his constitutional

right to remain silent and his statutory right to speak on his own

behalf in mitigation of punishment.

In Crampton v. Ohio, decided with McGautha v. California, 402

U.S. 183 (1971), vacated in part on other grounds, 408 U.S. 491

(1972), the Court addressed a similar situation under Ohio’s single

trial procedure where a defendant could exercise his constitutional

right not to be compelled to be a witness against himself on the

issue of guilt only at the cost of surrendering any chance to plead

his case on the issue of punishment. The Court upheld Ohio’s

single procedure, stating:

The criminal process, like the rest of the legal
system, is replete with situations requiring “the making
of difficult judgments” as to which course to follow.
McMann v. Richardson, 397 U.S., at 769. Although a
defendant may have a right, even of constitutional
dimensions, to follow whichever course he chooses, the
Constitution does not by that token always forbid
requiring him to choose. The threshold question is
whether compelling the election impairs to an appreciable
extent any of the policies behind the rights involved.

Crampton, 402 U.S. at 213. See Jenkins v. Anderson, 447 U.S. 231,

236 (1980); Corbitt v. New Jersey, 439 U.S. 212, 218--19 n.8 (1978)

(quoting Crampton); Middendorf v. Henry, 425 U.S. 25, 48 (1976)

(quoting Crampton); United States v. Jenkins, 904 F.2d 549, 558

n.10 (10th Cir. 1990).

We turn first to the privilege against self-incrimination.

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The contention is that Harvey was unlawfully compelled to become a

witness against himself in order to take advantage of his right to

allocution in the hope of receiving a lenient sentence. The Court

in Crampton defined the issue as “whether it is consistent with the

privilege for the State to provide no means whereby a defendant

wishing to present evidence or testimony on the issue of punishment

may limit the force of his evidence . . . to that issue.” Id. at

213-14.

The Crampton Court concluded that “the policies of the

privilege against compelled self-incrimination are not offended

when a defendant . . . yields to the pressure to testify on the

issue of punishment.” Id. at 217. In reaching its decision, the

Court cited to many examples where the defendant is forced to

choose between competing rights. See Brown v. United States, 356

U.S. 148 (1958) (one who takes the stand in his own behalf cannot

then claim the privilege against cross-examination on matters

reasonably related to the subject matter of his direct

examination); Spencer v. Texas, 385 U.S. 554, 561 (1967) (a

defendant who takes the stand in his own behalf may be impeached by

proof of prior convictions or otherwise inadmissible evidence);

United States v. Calderon, 348 U.S. 160, 164 n.1 (1954) (a

defendant whose motion for acquittal at the close of the State’s

case is denied must decide whether to stand on his motion or put on

a defense, with the risk that in so doing he will bolster the

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State’s case enough to support a verdict of guilty); Williams v.

Florida, 399 U.S. 78 (1970) (upheld a Florida law requiring a

defendant to choose between abandoning his alibi defense or giving

the State both an opportunity to prepare a rebuttal and leads from

which to start).

Accordingly, the privilege against compelled self-

incrimination is not offended when a defendant yields to the

pressure to testify on the issue of punishment in the hope of

leniency. A defendant’s choice to exercise his right to

allocution, like the choice to exercise the right to testify, is

entirely his own; he may speak to the court, but he is not required

to do so. Once a defendant chooses to testify, though, he waives

his privilege against compelled self-incrimination with respect to

the testimony he gives and the testimony is admissible in evidence

against him in later proceedings. See Harrison v. United States,

392 U.S. 219, 222 (1968) (“[W]e do not question the general

evidentiary rule that a defendant’s testimony at a former trial is

admissible in evidence against him in later proceedings.”). It

makes no difference that the defendant may have been motivated to

testify in the first instance only by reason of the strength of the

lawful evidence adduced against him. Id. Therefore, the use of a

Harvey’s allocution statement in his subsequent conspiracy trial

did not violate his due process rights if the making of the

statement was an effective waiver of his Fifth Amendment rights.

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 An effective waiver of one’s Fifth Amendment right against

compelled self-incrimination may exist only if it is voluntary,

knowing, and intelligent with an understanding of the consequences

of such waiver. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).

In Colorado v. Spring, 479 U.S. 564, 573 (1987), the Court stated

that the inquiry of whether a waiver is coerced “has two distinct

dimensions:”

First the relinquishment of the right must have been
voluntary in the sense that it was the product of a free
and deliberate choice rather than intimidation, coercion,
or deception. Second, the waiver must have been made
with a full awareness both of the nature of the right
being abandoned and the consequences of the decision to
abandon it. Only if the “totality of the circumstances
surrounding the interrogation” reveal both an uncoerced
choice and the requisite level of comprehension may a
court properly conclude that the Miranda rights have been
waived.

(quoting Moran v. Burbine, 475 U.S. 412, 421 (1986)).

We hold that Harvey’s decision to make an allocution statement

was voluntary. At the pretrial hearing to determine if his

allocution statement was admissible in his conspiracy trial, Harvey

conceded that he made his allocution statement voluntarily and that

he was not coerced.5 (ROA, Vol. I, Tab 3, Exhibit C at 969).

5
Although Harvey conceded the issue of voluntariness,
Harvey’s appointed counsel rests the bulk of his argument on this
issue premised on the idea that the trial court coerced Harvey
into making his allocution statement by addressing him personally
and asking if he would like to make a statement in mitigation of
punishment. (Appellant’s Supplemental Opening Brief at 37-42).
However, the trial court simply followed the dictates of the
Wyoming rules of criminal procedure. See W. R. Cr. P. 32(c);
(ROA, Vol. I, Tab 12, Exhibit 2 at 2). There cannot be coercion

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Therefore, our only concern is whether or not he did so knowingly,

intelligently, and with an understanding of the consequences.

Although Harvey may not have been aware of the specific

consequences that ultimately resulted from his waiver of his right

to remain silent at the sentencing hearing, “[t]he Constitution

does not require that a criminal suspect know and understand every

possible consequence of a waiver of the Fifth Amendment privilege.”

Colorado, 479 U.S. at 574. “The Fifth Amendment guarantee is both

simpler and more fundamental: A defendant may not be compelled to

be a witness against himself in any respect.” Id. at 574. Under

Miranda, the defendant must be aware of his right to remain silent

and of the consequences of abandoning that right. Id. at 577.

There is no allegation that Harvey failed to understand the

basic privilege guaranteed by the Fifth Amendment; Harvey

understood that he had the right to remain silent. Nor is there

any allegation that he misunderstood the consequences of speaking

freely to the district court; Harvey knew that anything he said

could be used as evidence against him. Harvey was advised of his

Fifth Amendment rights at the time he was arrested, at the time of

his initial appearance in county court, and at the time of his

arraignment in district court. Harvey was represented by counsel

at all times. Finally, Harvey made his allocution statement under

when the court simply follows the mandated procedures without any
independent elaboration.

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oath after having been sworn in by the trial court. In sum, we

agree with the district court that Harvey “voluntarily, knowingly,

and intelligently waived his right against self-incrimination at

his first sentencing hearing.” Harvey III, 893 F. Supp. at 1030.

IV. Ineffective Assistance

Harvey contends that he was denied effective assistance of

counsel at the sentencing phase of his first trial because his

counsel failed to advise him that his allocution statement could be

used against him in a second trial.

“The writ of habeas corpus shall not extend to a prisoner

unless [h]e is in custody in violation of the Constitution or laws

or treaties of the United States.” 28 U.S.C. § 2241(c)(3). See

also 28 U.S.C. § 2254(a). In Maleng v. Cook, 490 U.S. 488, 491-92

(1989), the Court concluded that while the concept of “in custody”

does not require that the petitioner be physically confined and

extends beyond incarceration to parole on an unexpired sentence, it

does not extend to the “situation where a habeas petitioner suffers

no present restraint from a challenged conviction” at the time of

the filing of the habeas petition. In Gamble v. Parsons, 898 F.2d

117, 118 (10th Cir.), cert. denied, 498 U.S. 879 (1990), we held

that Maleng:

precludes a defendant from challenging a fully-expired
conviction in isolation even though it may have potential

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 collateral consequences in some future case. Further,
even if the fully-expired conviction, has, in fact been
used to enhance a subsequent sentence, it may not be
attacked directly in a habeas action. Rather the attack
must be directed toward the enhanced sentence under which
the defendant is in custody. However, if the attack is
so directed, the defendant may argue that his present
sentence is improper because it has been enhanced by a
prior, unconstitutional conviction.

See also Waldon v. Cowley, 880 F.2d 291, 292 (10th Cir. 1989).

Harvey is currently incarcerated pursuant to the conspiracy

conviction and sentence entered after his second trial. However,

his claim is a direct attack on his counsel’s performance at the

sentencing phase of his first trial. Inasmuch as his first

convictions were vacated by the Wyoming Supreme Court, see Harvey

I, 774 P.2d 87, he suffers no present restraint as a result of

those convictions. Accordingly, we interpret his habeas petition,

when construed with the deference to which he is entitled as a pro

se litigant,6 as a challenge to his current incarceration through

his first counsel’s performance at the sentencing hearing during

his first trial. Therefore, the issue becomes whether Harvey’s

“present sentence is improper because it has been enhanced by a

prior unconstitutional conviction.” Gamble, 898 F.2d at 118.

To constitute enhancement, a petitioner must show that “if he

prevails in challenging his prior expired conviction, the sentence

6
For the purposes of this case only, we construe
Harvey’s petition as pro se, even though appointed counsel filed
an Appellant’s Supplemental Opening Brief, to avoid the adverse
effects of counsel’s apparent oversight of Maleng’s and Gamble’s
prohibition against attacking expired convictions directly.

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that he is currently serving will be reduced.” Collins v. Hesse,

957 F.2d 746, 748 (10th Cir. 1992). If Harvey were to prevail on

his ineffective assistance of counsel claim, his first convictions

would be unconstitutional. However, this would not affect his

current sentence. The subsequent use of Harvey’s allocution

statement depends on the effectiveness of his waiver of his Fifth

Amendment rights, see part III.; it does not depend on his

counsel’s failure to advise him in any way. Therefore, Harvey’s

current sentence was not “enhanced” in any manner by his vacated

prior convictions.

As a result, Harvey is not “in custody” for purposes of this

claim. Therefore, we are without jurisdiction to consider this

claim further.

Conclusion

Based of the foregoing analysis, the district court properly

dismissed Harvey’s petition for a writ of habeas corpus filed

pursuant to 28 U.S.C. § 2254.

AFFIRMED.

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