Unpublished Disposition, 915 F.2d 1582 (9th Cir. 1990)

Andre Brigham YOUNG, Petitioner-Appellant,v.STATE OF WASHINGTON, Respondent-Appellee.

No. 89-35678.

United States Court of Appeals, Ninth Circuit.

Submitted July 6, 1990.^* Decided Oct. 1, 1990.

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

MEMORANDUM

For the second time, Andre Brigham Young appeals the dismissal of his habeas corpus petition for failure to satisfy the "custody" requirement of 28 U.S.C. § 2254(a). In 1987 Young filed a petition attacking his 1963 Washington State rape conviction. He had served the sentence for that conviction, but was incarcerated for a 1986 rape conviction. It is undisputed that his second sentence was enhanced because of the first.

The district court dismissed Young's petition on the ground that Young's 1963 sentence was fully served, and he was accordingly not "in custody" as required by section 2254. On appeal, we reversed in an unpublished memorandum disposition. We relied on our recent decision in Cook v. Maleng, 847 F.2d 616 (9th Cir. 1988), in which we held that a prisoner facing an enhanced sentence because of an earlier conviction was " 'in custody' for the purposes of a habeas corpus attack on the conviction." Id. at 618-19. We remanded Young's case to the district court.

After our remand, the Supreme Court reviewed our decision in Cook v. Maleng. The Supreme Court affirmed our ruling that Cook was in custody, but on different reasoning from that which we had employed. Maleng v. Cook, 109 S. Ct. 1923 (1989). The Court stated:

[T]he Court of Appeals held that a habeas petitioner may be "in custody" under a conviction whose sentence has fully expired at the time his petition is filed, simply because that conviction has been used to enhance the length of a current or future sentence imposed for a subsequent conviction. We think that this interpretation stretches the language "in custody" too far.

Id. at 1925. The Court rejected the proposition that a petitioner could be considered "in custody" after completely serving a sentence "merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted." Id. at 1926. Accordingly, the Court rejected the notion that a petitioner in Cook's position was still "in custody" under his prior sentence.

This did not mean, however, that Cook was not "in custody" at all. "When the second sentence is imposed, it is pursuant to the second conviction that the petitioner is incarcerated and is therefore 'in custody.' " Id. As a result, the district court had jurisdiction over Cook's petition.

Since we think respondent's habeas petition, construed with the deference to which pro se litigants are entitled, ... can be read as asserting a challenge to the 1978 sentences, as enhanced by the allegedly invalid prior conviction, ... we affirm the Court of Appeals' finding that respondent has satisfied the "in custody" requirement for federal habeas jurisdiction.

Id. at 1926-27.

When the Supreme Court's decision in Maleng v. Cook came to the attention of the district court to which we had remanded Young's case, the district court on its own motion again dismissed Young's petition. The court recited the first of the passages from Maleng v. Cook quoted above, holding that a petitioner is not "in custody" under a prior conviction for which he has completed serving his sentence. The district court concluded that Maleng v. Cook "reverses the decision of the Ninth Circuit Court of Appeals in Young v. State of Washington ... and in effect reinstates this court's [earlier] dismissal of this petition."

The district court has misread Maleng v. Cook. The court did not reverse this court's decision in Cook v. Maleng, nor did it reverse our decision in Young. It sympathetically read Cook's petition, which listed the prior 1958 conviction as the one under attack, see Maleng v. Cook, 109 S. Ct. at 1924, to allege an attack on Cook's later 1978 conviction as enhanced by the allegedly invalid prior conviction.

We recently emphasized this understanding of Maleng v. Cook in a case raising much the same questions as this one. Feldman v. Perrill, 902 F.2d 1445, 1447-48 (9th Cir. 1990). There we concluded that " [l]ike the Court in Maleng, we are obliged to construe this pro se petition as an attack on petitioner's current federal sentence as enhanced." Id. at 1448-49. We see no reason why the same obligation does not apply here.

The State contends that Young's petition cannot be viewed as an attack on the sentence he is currently serving, because his petition does not mention it. The State insists that, after the dismissal of his petition, Young should have moved to amend his petition to include an allegation that he was attacking his current, enhanced sentence. It also suggests that he should file a new petition with the proper allegations.

We reject these arguments. There has never been any question that one of the things Young was attacking was the enhancement of his present sentence. It was the subject of many of the papers and motions he filed in his case. It is not essential that the petition itself expressly attack the current conviction if it is otherwise clear from the record that the later enhancement is a subject of complaint. Gamble v. Parsons, 898 F.2d 117, 118 (10th Cir. 1990) (sufficient when traverse to motion to dismiss complains of current sentence enhancement); Lowery v. Young, 887 F.2d 1309, 1311-12 (7th Cir. 1989) (sufficient when enhancement raised in amendment to traverse; " [s]ince Lowery's pro se petition was subject to reasonable interpretation, construing it as improperly filed makes little practical sense"). In reversing Young's previous dismissal, we said that "Young claims his second sentence was enhanced as a result of the first allegedly unconstitutional conviction." Certainly on remand there should have been no question what the case was about.

We therefore hold that Young is "in custody" within the meaning of 28 U.S.C. § 2254(a) and that he may attack his current sentence on the ground that his prior conviction, which enhanced his current sentence, was invalid. See Gamble v. Parsons, 898 F.2d at 118. Our ruling is limited to the jurisdictional custody requirement, and we express no opinion on any other procedural hurdles Young may or may not face. The judgment of the district court dismissing the petition is reversed and the case is remanded for consideration of the merits of the petition.¹ 

REVERSED AND REMANDED.