Unpublished Disposition, 922 F.2d 845 (9th Cir. 1989)

MEMORANDUM^** 

George Myers, a Washington state prisoner, appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition pursuant to 28 U.S.C. § 1915(d) and Rule 9(a), Rules Governing Sec. 2254 Proceedings. Myers contends that the district court erred in not construing his petition as a challenge to his 1986 sentence as enhanced by the allegedly invalid 1953 conviction, rather than an improper challenge to his 1953 conviction.

We reverse the judgment of the district court and remand for further proceedings in accord with this opinion.

FACTS

George Myers was convicted of second degree burglary in August 1953 and sentenced to 15 years in state prison. He completed service of his 1953 sentence in 1963. In March 1986, Myers was convicted on two counts of first degree robbery and sentenced to 153 months in state prison.

After exhausting state remedies, Myers filed this habeas corpus petition in federal district court for the Western District of Washington. Myers raised three grounds for error: (1) denial of his fifth and sixth amendment rights in 1953; (2) coercion of his 1953 plea of guilty; and (3) denial of assistance, or ineffective assistance, of counsel in 1953 and in the reuse of the invalid conviction to enhance his current sentence. On March 21, 1989, the district court summarily dismissed Myers' petition pursuant to 28 U.S.C. § 1915(d) and Rule 9(a), Rules Governing Sec. 2254 Proceedings.

On April 4, 1989, Myers filed a motion for reconsideration or request for certificate of probable cause, and a motion for appointment of counsel. The district court denied Myers' motions and his request for a certificate of probable cause. Myers filed a timely notice of appeal. On September 29, 1989, this court granted Myers' request for a certificate of probable cause.

STANDARD OF REVIEW

This court reviews de novo the district court's dismissal of an action as frivolous under 28 U.S.C. § 1915(d). Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989); Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

Myers contends that the district court erred in summarily dismissing his Sec. 2254 habeas corpus petition as frivolous. He asserts that the Supreme Court's decision in Maleng v. Cook, 109 S. Ct. 1923 (1989), is analogous to his case and warrants reversal for consideration of the merits of his habeas corpus petition. We agree.

In its order dismissing Myers' habeas petition, the district court interpreted his petition as an attack on his 1953 conviction. District courts have subject matter jurisdiction to entertain habeas corpus petitions only from persons who are " 'in custody ' in violation of the Constitution or laws or treaties of the United States." Sec. 2241(c) (3) (1982) (emphasis added). The habeas petitioner must be "in custody under the conviction or sentence under attack at the time his petition is filed." Maleng, 109 S. Ct. at 1925 (citation omitted). An expired conviction can never satisfy the "in custody" requirement, even though it may possibly be used to enhance a subsequent sentence, and even if this possibility actually occurs. Id. at 1925-26; Feldman v. Perrill, 902 F.2d 1445, 1448 (9th Cir. 1990).

In Maleng, petitioner Cook had completed serving a 1958 state sentence, was currently serving a 1976 federal sentence, and had pending a 1978 state sentence that he had not begun to serve. 109 S. Ct. at 1924. In his habeas petition, Cook, appearing pro se, listed the 1958 conviction as the conviction under attack. Id. at 1924-25. The Supreme Court decided that since Cook had completed his 1958 sentence, he was no longer "in custody" under that sentence and therefore could not attack the 1958 conviction. Id. at 1925-26. However, the Supreme Court did not dismiss Cook's petition. Id. at 1926. Instead, the Supreme Court liberally construed Cook's pro se petition as an attack on his 1978 conviction, as enhanced by the allegedly illegal 1958 conviction, for which he was currently "in custody." Id. at 1926-27 (citing Haines v. Kerner, 404 U.S. 519 (1972)). See also Feldman, 902 F.2d at 1448 (construing petitioner's attack on a conviction for which he had already completed his sentence as an attack on his current federal sentence as enhanced).

Similarly, Myers is challenging the legality of a 1953 conviction for which he is no longer in custody. However, he is presently incarcerated in a Washington state prison pursuant to a 1986 conviction. His habeas corpus petition and memo in support of his petition included a challenge to the reuse of his invalid 1953 conviction to enhance his 1986 sentence.

Thus, the district court erred in dismissing Myers' petition because under Maleng, it was "obliged to construe [the] pro se petition as an attack on petitioner's current ... sentence as enhanced" by his prior allegedly invalid conviction.¹  Feldman, 902 F.2d at 1448-49. Because Myers' petition was not frivolous, he was entitled to service of his petition on the respondents. See Neitzke v. Williams, 109 S. Ct. 1827, 1831 (1989); Jackson, 885 F.2d at 640.

Construing Myers' pro se Sec. 2254 petition as a challenge to his 1986 sentence as enhanced, however, raises the question of whether Myers has exhausted his state court remedies as to this claim. A federal habeas action must be dismissed if the petitioner has failed to exhaust all available and effective state court remedies as to each claim raised in the petition. 28 U.S.C. § 2254(b); Rose v. Lundy, 455 U.S. 509, 522 (1982). Because Myers' claim is being construed as a challenge to his 1986 sentence as enhanced and not his 1953 conviction, it is unclear whether this claim is exhausted. There is nothing in the record to indicate how the Washington state courts construed Myers' claim, i.e., as a challenge to his 1953 conviction or to his 1986 sentence as enhanced.

Therefore, we remand this action to the district court to first determine whether Myers has exhausted his state court remedies. If the district court finds that he has exhausted state court remedies, then it should consider the merits of his habeas corpus petition.² 

The district court also dismissed Myers' petition pursuant to Rule 9(a), Rules Governing Sec. 2254 Proceedings. The district court determined that it had the discretion to dismiss a late petition if the delay appeared to have prejudiced the state's ability to respond and the petitioner had not shown cause for the delay. The court found that the prejudice to the state was "obvious" and that Myers had made no showing to explain the delay. This was in error.

Rule 9(a) provides:

A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.

"Rule 9(a) is based on the doctrine of laches; the court must use its discretion in weighing the equities involved." Jessup v. United States Parole Comm'n, 889 F.2d 831, 834 (9th Cir. 1989) (citing Rule 9, Rules Governing Sec. 2254 Proceedings, Advisory Committee Note (1982)). We have held that mere delay does not raise a presumption of prejudice, rather the state must always show actual prejudice as a result of the delay. See id.; see also Terry v. Enomoto, 723 F.2d 697, 699 (9th Cir.) ("procedural default, in the absence of a showing of actual prejudice, bars federal habeas corpus relief"), cert. denied, 469 U.S. 845 (1984); LaLande v. Spalding, 651 F.2d 643 (9th Cir.) (district court erred in dismissing habeas petition, where the State failed to show prejudice by a seven-year filing delay), cert. denied, 452 U.S. 965 (1981).

In this case, the district court dismissed Myers' petition as frivolous and, therefore, did not require the state to respond. The district court improperly placed the burden of proof regarding prejudice on the petitioner. Therefore, the district court erred in dismissing Myers' habeas petition pursuant to Rule 9(a) without requiring the state to show prejudice. See Jessup, 889 F.2d at 834.

The judgment of the district court is REVERSED and REMANDED for further proceedings in accord with this opinion.