Unpublished Dispositionwilliam B. Kissane, Petitioner-appellant, v. H. Gary Wells, Warden, Muskegon Correctional Facility,muskegon, Mi, Respondent-appellee, 880 F.2d 414 (6th Cir. 1989)

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US Court of Appeals for the Sixth Circuit - 880 F.2d 414 (6th Cir. 1989) July 28, 1989

Before MERRITT and DAVID A. NELSON, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.


ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

William B. Kissane appeals pro se the dismissal of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. Petitioner entered a guilty plea to a charge of kidnapping and was sentenced to six to fifteen years. His petition stated that the denial of discovery at his preliminary examination violated his right to due process. The district court adopted the magistrate's report which concluded that petitioner had no right to discovery at the preliminary examination, and had also waived his right to challenge any defect by his guilty plea.

Upon consideration, we conclude that the dismissal of this petition must be affirmed for reasons other than those relied on by the district court, see Russ' Kwik Car Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir. 1985), because the district court lacked jurisdiction over this case. Petitioner's records show that he had fully served the sentence under attack and was incarcerated on an unrelated charge at the time this petition was filed. Thus, he was not "in custody" for purposes of habeas corpus, and there was no jurisdiction in the district court. See Maleng v. Cook, --- U.S. ----, 109 S. Ct. 1923 (1989) (per curiam); Ward v. Knoblock, 738 F.2d 134, 138 (6th Cir. 1984), cert. denied, 469 U.S. 1193 (1985); Steinberg v. Police Court of Albany, 610 F.2d 449, 453 (6th Cir. 1979).

Accordingly, the dismissal of this petition is hereby affirmed. Rule 9(b) (5), Rules of the Sixth Circuit.