Thomas Marion Wright, v. United States of America, Defendant-appellee, 116 F.3d 488 (9th Cir. 1997)

MEMORANDUM^** 

Thomas Wright appeals the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Section 2255 allows a prisoner "in custody" to challenge a federal sentence. 28 U.S.C. § 2255. Wright was not in custody for the conviction he attempted to challenge in his habeas motion, and the district court therefore lacked jurisdiction over the motion.

The Supreme Court's decision in Garlotte v. Fordice, 115 S. Ct. 1948 (1995) does not mandate a different result. In Garlotte, the Court allowed a defendant to bring a habeas petition challenging a conviction when the defendant had completed the sentence for this conviction. Id. at 1952. The defendant, however, was still serving a consecutive sentence when he brought his habeas petition. Id. The Court reasoned that the defendant's challenge, if successful, would shorten his term of incarceration. Id.

Wright, by contrast, was serving a parole and special parole sentence which was concurrent to the sentence for the conviction he challenged in his habeas motion. A successful habeas petition would have not changed his term of incarceration under the parole and special parole sentence. The rationale of Garlotte does not extend to cases which involve concurrent sentences.

AFFIRMED.