Jesus John Hernandez, Petitioner-appellant, v. William Perrill, Warden; People of the State of Colorado,respondents-appellees, 17 F.3d 1437 (10th Cir. 1994)

Mr. Hernandez appeals from the dismissal of his habeas corpus petition in which he contends that an expired state conviction is invalid, yet being used to enhance his current federal sentence. The district court determined that Mr. Hernandez was unable to prove that a successful challenge to the expired conviction would reduce the sentence currently being served. See Collins v. Hesse, 957 F.2d 746, 748 (10th Cir. 1992).

Mr. Hernandez contends that this case should be resolved in accordance with Feldman v. Perrill, 902 F.2d 1445, 1449 (9th Cir. 1990), in which the appellate court remanded to the district court to determine whether the Parole Commission relied upon the allegedly invalid conviction.

The magistrate judge determined that Mr. Hernandez could be released (and thereafter paroled) no earlier than August 3, 1994, due to a nonparolable CCE sentence. I R. doc. 15 at 4-5. August 3, 1994 is Mr. Hernandez's presumptive parole date from all of his other sentences. On motion for reconsideration of the district court's order, Mr. Hernandez attached a printout indicating that his parole eligibility date, which he claims is his scheduled release date from the CCE sentence, is actually July 30, 1994. I R. doc. 18 ex. C. Accordingly, Mr. Hernandez claims that the invalid state conviction results in prolonging his conviction past July 30, 1994, and that the district court should consider his challenge to the expired state conviction on the merits.

The district court denied Mr. Hernandez's motion for reconsideration in a summary order and the government has not addressed this argument on appeal. We therefore remand to the district court to resolve the matter of the apparently conflicting dates and proceed accordingly.

REMANDED.