Thomas Ray Weaver, Plaintiff-appellant, v. Larry Fields, Attorney General of the State of Oklahoma,defendants-appellees, 9 F.3d 1557 (10th Cir. 1993)

Before TACHA and KELLY, Circuit Judges, and BROWN,^**  District Judge.

ORDER AND JUDGMENT¹ 

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Petitioner Thomas Ray Weaver appeals from an order of the district court dismissing without prejudice his petition for habeas relief filed pursuant to 28 U.S.C. 2254. Although petitioner's opening brief was submitted by counsel, he is now proceeding pro se. We grant a certificate of probable cause. We exercise jurisdiction under 28 U.S.C. 2253 and 1291, and affirm.

Petitioner challenged two 1984 convictions. He argued that because previous convictions relied upon to enhance the 1984 sentences were overturned as unconstitutional, the 1984 convictions were also constitutionally infirm. He conceded he was no longer in custody for the 1984 convictions, however, and the district court correctly concluded that he was therefore not entitled to directly challenge them in a habeas action. See Gamble v. Parsons, 898 F.2d 117, 118 (10th Cir.) (citing Maleng v. Cook, 490 U.S. 488 (1989) (per curiam)), cert. denied, 111 S. Ct. 212 (1990). The district court correctly determined that the petition may properly be construed as a challenge to the use of the 1984 convictions to enhance the sentence petitioner is currently serving following convictions in 1988. See id.

Because petitioner's direct appeal from the 1988 conviction had not been decided at the time he filed his habeas petition, the district court correctly dismissed the petition for failure to exhaust state remedies.

Even if petitioner had exhausted state remedies, however, his argument must fail. Assuming there was any error concerning his 1984 convictions as a result of his voided previous convictions, it was that the sentences were improperly enhanced, not that petitioner was erroneously convicted. However, it is the fact of the 1984 convictions, not the sentences imposed, that was used to enhance his 1988 sentence. Thus, petitioner's argument would be unavailing in any event.

Petitioner's objection to appellee's brief is without merit. To the extent petitioner moves this court to strike appellee's brief, the motion is denied.

The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.

The mandate shall issue forthwith.