Unpublished Disposition, 933 F.2d 1017 (9th Cir. 1991)

MEMORANDUM^** 

George E. Myers, a Washington state prisoner, appeals the district court's denial of his 28 U.S.C. § 2255 motion. We vacate the district court's judgment and remand with instructions.

George Myers was charged in 1964 with bank robbery in violation of 18 U.S.C. § 2113(a). He was convicted and sentenced in the district court of Oregon to 10 years in prison. Myers completed service of his federal sentence in approximately 1974. In March 1986, Myers was convicted on two counts of first degree robbery and sentenced to 153 months in Washington state prison. His state sentence was enhanced based on his 1964 federal conviction.

In June 1988, Myers filed this section 2255 motion pro se, challenging the "constitutional validity [of his 1964 conviction] and the renewed use of this conviction." The government responded that Myers's petition should be construed as a section 2254 petition, and dismissed for failure to exhaust state remedies. The magistrate, however, did not agree with the government, and appointed counsel to assist Myers with the merits of his motion. The motion was denied on the merits, and Myers timely appealed. On appeal, the government renews its objection to the district court's failure to construe the motion as a habeas corpus petition.

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." 28 U.S.C. § 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 v. Cook, 490 U.S. 488, 491 (1989) (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 the possibility actually occurs. Id. at 491-92; Feldman v. Perrill, 902 F.2d 1445, 1448 (9th Cir. 1990). Thus, once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual "in custody" for the purposes of a habeas attack upon it. Id. at 492.

Here, Myers is challenging the legality of a 1964 federal conviction for which he is no longer in custody. Thus, he cannot challenge this conviction through a section 2255 motion. He is presently incarcerated in Washington state prison, however, pursuant to a 1986 state conviction. Myers may properly file only a section 2254 habeas corpus petition to attack his 1986 sentence as enhanced because that is the only conviction for which he was "in custody" at the time he filed this action. See Maleng, 490 U.S. at 491-92. Therefore, we vacate the district court's judgment and remand with instructions to construe Myers's motion as a section 2254 habeas corpus petition. We further instruct the district court to transfer the petition to the district court of Washington as it is the only court having jurisdiction over Myers's custodian. See Braden v. 30th Judicial Circuit of Kentucky, 410 U.S. 484, 494-95, 498-99 & n. 15 (1973); Subias v. Meese, 835 F.2d 1288, 1289 (9th Cir. 1987).¹ 

VACATED AND REMANDED with instructions.