Unpublished Disposition, 881 F.2d 1084 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 881 F.2d 1084 (9th Cir. 1989)

Ernest Leroy SMITH, Petitioner-Appellant,v.Manfred MAASS, Respondent-Appellee.Ernest Leroy SMITH, Petitioner-Appellant,v.Manfred MAASS, Respondent-Appellee.Ernest Leroy SMITH, Petitioner-Appellant,v.Manfred MAASS, Superintendent, Respondent-Appellee.Ernest Leroy SMITH, Petitioner-Appellant,v.Manfred MAASS, Respondent-Appellee.

Nos. 88-4265, 88-4268, 88-4307 and 88-4353.

United States Court of Appeals, Ninth Circuit.

Submitted*  June 8, 1989.Decided Aug. 7, 1989.

Before JAMES R. BROWNING, WALLACE and FLETCHER, Circuit Judges.


MEMORANDUM

Smith appeals from the district court's judgments dismissing four petitions for writ of habeas corpus. The district court dismissed for lack of jurisdiction, finding that Smith was not in custody for the challenged convictions. The district court determined that it did not have jurisdiction over Smith's habeas corpus petitions pursuant to 28 U.S.C. § 2254. We exercise jurisdiction pursuant to 28 U.S.C. § 2253. We affirm.

Smith is currently serving a 30-year sentence for a state court conviction for attempted murder, robbery, and assault. The state court found that petitioner was a dangerous offender under Or.Rev.Stat. Secs. 161.725 and 161.735 (1987), thereby warranting an enhanced sentence. This determination was premised upon a 1975 conviction for attempted burglary, a 1965 conviction for possession of a firearm, and the requisite finding that defendant suffered from a severe personality disorder. The finding that Smith was a dangerous offender enhanced the sentence he is presently serving.

Smith filed four petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. These petitions challenged three juvenile dispositions between 1952 and 1955 (88-4265), a 1956 juvenile conviction for assault with intent to rob (88-4353), a 1957 conviction for assault with intent to kill (88-4268), and two 1969 convictions for obtaining money or property under false pretenses (88-4307). Smith asserted various state and federal constitutional arguments in support of each of his petitions.

The magistrate found that the district court lacked jurisdiction to review the challenged convictions because Smith was not in custody or on parole for these convictions, nor were they used to enhance Smith's sentence. Smith timely filed an objection to the findings and recommendations of the magistrate. Therefore, the district court, pursuant to 28 U.S.C. § 636(b) (1) (C), conducted an independent review of that portion of the magistrate's report to which objection was made. The district court, after such review, adopted the magistrate's findings and recommendations and issued an order dismissing each of Smith's petitions for habeas corpus for lack of jurisdiction, and therefore denied Smith's motion for return to Oregon as moot. Smith timely filed a notice of appeal of each of the dismissals, and the four appeals were consolidated on March 14, 1989. We review a district court's dismissal of a petition for writ of habeas corpus independently. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841 (1985).

The federal court does not have jurisdiction to entertain a writ of habeas corpus from a state prisoner unless the petitioner is in custody for the challenged conviction. 28 U.S.C. § 2254(a). The Supreme Court has recently held that the "in custody" requirement is not satisfied when the challenged conviction has expired and is used merely to enhance the sentence that the petitioner is presently serving. Maleng v. Cook, 109 S. Ct. 1923, 1926 (1989) (per curiam). Therefore, even if any of the challenged convictions were used to enhance Smith's present sentence, he would not be in custody for any of the challenged convictions.

Smith may be able to challenge these prior convictions in an attack on this current sentence, if they were used to enhance it. Id. at 1927. But that is not for us to pursue on the record before us.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4