Unpublished Disposition, 852 F.2d 1291 (9th Cir. 1988)

Andre Brigham YOUNG, Petitioner-Appellant,v.STATE of WASHINGTON, Respondent-Appellee.American Civil Liberties Union of Washington Foundation, Amicus.

No. 87-3990.

United States Court of Appeals, Ninth Circuit.

Argued May 4, 1988.Submitted July 22, 1988.July 22, 1988.

Before WRIGHT and CANBY, Circuit Judges and WILLIAM H. ORRICK^*  District Judge.

MEMORANDUM^** 

Andre Brigham Young ("Young") appeals the dismissal of his petition for a writ of habeas corpus. Young's current incarceration is a result of a 1986 conviction by respondent, the State of Washington ("Washington"). His petition challenges a 1963 Washington state conviction for which the sentence has already been served. Young claims that his second sentence was enhanced as a result of the first allegedly unconstitutional conviction. The district court held that Young fails to meet the "in custody" jurisdictional requirement of 28 U.S.C. § 2254(a) because he is no longer serving the sentence on the first conviction. WE REVERSE.

This court recently held that the custody requirement for habeas corpus relief is satisfied where a prisoner's prior conviction, although expired, is used to enhance the sentence on a current or future term. Cook v. Maleng et al., No. 86-4151, slip op. at 6317, 6323 (9th Cir. June 2, 1988) (per curiam)¹ . In Cook, the petitioner's 1978 federal sentence was lengthened as a result of a 1958 state conviction for which the sentence had already been fully served. This court agreed with the reasoning of those circuits which have held that a prisoner "in custody" under one conviction is "in custody" to attack an earlier conviction used to enhance the later sentence. Cook, slip op. at 6321 (and citations therein).

Young will have to serve a sentence of 67 to 89 months instead of 51 to 68 months as a result of the prior conviction. If the first conviction was obtained unconstitutionally and is invalid, then his present confinement should not be lengthened by that invalid conviction. Cook v. Maleng, slip op. at 6322 (citing to State v. Gonzales, 103 Wash. 2d 564, 567, 693 P.2d 119, 121 (1985) (state must prove validity of prison conviction used to enhance sentence); State v. Barnes, 42 Wash. App. 56, 57, 708 P.2d 414, 415 (1985)). Washington characterizes this enhancement as merely a "collateral consequence" which cannot satisfy the custody requirement of habeas review. (Ginsberg v. Abrams, 702 F.2d 48, 49 (2d Cir. 1983)). This reasoning was rejected in Cook. "The [prior] conviction was used to increase the length of a term of imprisonment Cook has yet to serve; such a "collateral consequence" establishes the district court's subject matter jurisdiction over a challenge to the 1958 conviction." Slip Op. at 6323 (emphasis in original). Application of the majority rule is all the more appropriate in this case because both convictions were obtained by the same sovereign, the State of Washington.

CONCLUSION

Young is currently confined and his prior conviction will increase his period of confinement. Young is therefore in custody for purposes of 28 U.S.C. § 2254(a). The district court consequently erred when it dismissed his petition for lack of jurisdiction.

REVERSED AND REMANDED