Maloney v. Belleque, No. 3:2009cv00262 - Document 46 (D. Or. 2011)
Court Description: OPINION AND ORDER. The Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. Signed on 10/26/2011 by Judge Anna J. Brown. (gw)
Download PDF
<![CDATA[
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION CONN JOSEPH MALONEY, Case No. 3:09-cv-00262-BR Peti tioner, OPINION AND ORDER v. BRIAN BELLEQUE, Respondent. CONN JOSEPH MALONEY SID #8286458 Oregon State Penitentiary 2605 State Street Salem, OR 97310 Petitioner Pro Se JOHN R. KROGER Attorney General LYNN DAVID LARSEN Attorney-In-Charge Department of Justice 1162 Court Street NE Salem, OR 97301 Attorneys for Respondent 1 - OPINION AND ORDER - BROWN, Judge. Petitioner, an inmate at the oregon State Penitentiary, brings this habeas corpus action pursuant to 28 U.S.C. For the reasons that follow, 2254. § the Court DENIES the Petition for Writ of Habeas Corpus. BACKGROUND On September 23, 1999, a Clatsop County grand jury indicted Petitioner on one count of Rape in the First Degree, one count of Attempted Sexual Abuse in the First Degree, and five counts of Using a Child in a Display of Sexually Explicit Conduct. first two counts were dismissed, and the The remaining five were presented to the trial court in a stipulated facts trial. The trial judge found Petitioner guilty on all five counts of Using a Child in a Display of Sexually Explicit Conduct and sentenced Petitioner to 72 months on each count, with a 36-month minimum. The judge designated all five sentences to run concurrently with each other and concurrently with sentences Petitioner had received in a prior Clatsop County case. Petitioner filed a direct appeal, Appeals affirmed without opinion. 745, 62 P.3d 886 (2003). but the Oregon Court of State v. Maloney, 185 Or. App. Petitioner did not seek review from the Oregon Supreme court. Petitioner then sought state post-conviction relief ("PCR"). Following an evidentiary hearing, 2 - OPINION AND ORDER - the PCR trial judge denied relief. Petitioner appealed, affirmed without review. denied, but the Oregon Court of Appeals opinion and the Oregon Supreme Court denied Maloney v. Belleque, 221 Or. App. 702, 191 P.3d 813, rev. 345 Or. 301, 194 P.3d 17 (2008). On March 6, 2009, Petitioner file his Petition for Writ of Habeas Corpus with this Court. Respondent argues the Petition must be denied because the sentences at issue have fully expired and Petitioner is no longer in custody for the convictions which he seeks to challenge herein. Petitioner counters that he remains in sentences custody because other were enhanced by the convictions at issue here and because he is subject to future consequences such as the requirement that he register as a sex offender and the potential that these convictions could be used to enhance future sentences. DISCUSSION Under 28 U.S.C. § 2254, The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a write 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(a) (emphasis added). establish that petition for he \.,as this "in custody" Court 3 - OPINION AND ORDER - to have Petitioner must, therefore, at the time jurisdiction. he filed his Carafas v. 391 U. S. LaVallee, 234, 239-40 (1968 ) (petitioner must be in custody at the time petition is filed). u.s. In Maleng v. Cook, 490 Court interpreted the 488, 490-91 (1989), the Supreme statutory custody language for habeas eligibility as requiring a habeas petitioner be "in custody" under the conviction or sentence collateral "'[O)nce the conviction has completely expired, sentence imposed for a the consequences being of the challenged. conviction are not themselves sufficient to render an individual "in custody" for the purposes of a habeas attack upon it.'" 956 (9th Cir.), cert. 546 denied, U.S. 1043 (2005) (quoting 490 U.S. at 492). Maleng, The question Court in whether Maleng limited petitioner is conviction and "express [ed) [expired) attack Resendiz v. Koven sky, 416 F.3d 952, its "in holding custody" to for the the narrow expired no view on the extent to which the conviction itself may be subject to challenge in the upon [actually) interpreted the [current or used to enhance." Maleng to future) Id. permit sentences at 494. federal which it was The Ninth Circuit courts to "retain jurisdiction by liberally construing [a petition challenging an expired conviction) as an attack on [a subsequent) conviction, as enhanced by the allegedly illegal [expired) conviction." 4 - OPINION AND ORDER - Feldman v. Perrill, Weston, 902 F.2d 1445, 1448 (9th Cir. 1990); see also Brock v. 31 F.3d 887, 890 (9th Cir. 1994). Here, the Petition cannot reasonably be construed as an attack on the other, unexpired sentences Petitioner continues to serve. It is clear from the face of the Petition that Petitioner is instead challenging the legality of the convictions at issue. As Respondent notes, moreover, Petitioner is currently challenging his other sentences in another habeas corpus action. Finally, Petitioner has not shown that the convictions he attacks in this case actually enhanced his other sentences. To the extent Petitioner argues that the sex offender registration requirement tied to these convictions somehow renders him "in custody," his argument is without merit. In McNab v. Kok, the Ninth Circuit applied the holding in Maleng to a petition filed by a sex offender subject to the registration requirements of Oregon's sex offender registration statutes. (9th Cir. 1999). 170 F.3d 1246 The Ninth Circuit concluded that because "sex offenders subject to registration in 'Oregon are free to move to a new place of residence so long as they notify law enforcement officials of their new address," Oregon law does not place an offender "in custody" within the meaning of § 2254 (a). McNab, 170 F.3d at 1247 (citing Williamson v. Gregoire, 151 F.3d 1180, 1184 (9th Cir. 1998) (construing Washington law)) and Henry v. Lungren, 5 - OPINION AND ORDER - 164 F.3d 1240, 1241-42 (9th Cir. 1999) (construing California law) ) . Finally, to the extent Petitioner argues these convictions may at a later date be used to enhance a future sentence, argument is also without merit. this A fully expired conviction that may at a later date be used to enhance a future sentence does not satisfy the "in custody" requirement. Maleng, 490 U.S. at 490-91 (citing Jones v. Cunningham, 371 U.S. 236, 243 (1963)). "once the expired, sentence imposed for a conviction has In fact, completely 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." Maleng, 490 U.S. at 492. CONCLUSION For these reasons, the Court DENIES the Petition for writ of Habeas Corpus and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial constitutional right. showing of the denial of See 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. DATED this ~day of October, 2011. ~ United States District Judge 6 - OPINION AND ORDER - F:\Share\Brown-LawClerks\09-262maloneyl004opin.wpd a
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
