Tariq Ahmad, Petitioner-appellant, v. Attorney General of the State of California, Respondent-appellee, 124 F.3d 210 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 124 F.3d 210 (9th Cir. 1997)

Submitted Sept. 8, 1997. **Decided Sept. 15, 1997

Appeal from the United States District Court for the Central District of California, No. CV-96-05007-KMW(E); Kim McLane Wardlaw, District Judge, Presiding.

Before HALL, BRUNETTI, and THOMAS, Circuit Judges.


Tariq Ahmad appeals pro se the district court's dismissal of his 28 U.S.C. § 2254 habeas petition challenging his 1992 state conviction of one count of unlawful transportation of hazardous waste, in violation of California Health and Safety Code § 25189.5(c). We have jurisdiction pursuant to 28 U.S.C. § 2253, we review de novo, see Duckett v. Godinez, 67 F.3d 734, 739 (9th Cir. 1995), cert. denied, 116 S. Ct. 1549 (1996), and we affirm.

Ahmad contends the district court erred by dismissing his habeas petition for lack of subject matter jurisdiction. His contention lacks merit.

Ahmad's state conviction had fully expired in 1995. Ahmad filed his habeas petition in 1996. The district court did not err by dismissing Ahmad's habeas petition because Ahmad did not meet the statutory requirement of being "in custody" at the time he filed his petition. See 28 U.S.C. § 2241(c) (3) (1997); Maleng v. Cook, 490 U.S. 488, 492 (1989) (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). To the extent Ahmad premises his argument as an attack on his current federal conviction as enhanced by his state conviction, Ahmad must bring his claim through a motion under 28 U.S.C. § 2255. See Feldman v. Perrill, 902 F.2d 1445, 1447 (9th Cir. 1990) (" [H]abeas writs act upon the custodian, not the prisoner.").



The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3