B. Past or Future Confinement
Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104
L.Ed.2d 540 (1989), held that a habeas petitioner is not
“in custody” under a 1958 conviction, the sentence for
which has fully expired, solely because the conviction
could be used to enhance a sentence imposed for any
future crimes. In this case, however, the Court construed
the pro se habeas petition as challenging petitioner’s 1978
sentences currently being served (for other, later crimes),
as enhanced by the allegedly invalid prior 1958
conviction, and concluded that petitioner satisfied the
“in custody” requirement for subject-matter jurisdiction
purposes. The Court “expressed no view on the extent to
which the 1958 conviction itself may be subject to
challenge in the attack upon the 1978 sentences which it
was used to enhance.”
Braden v. 30th Judicial Circuit Court of Kentucky, 410
U.S. 484, 93 S.Ct. 1123, 35 L.Ed.2d 443 (1973),
concluded that an individual incarcerated in Alabama for
later convictions is “in custody” for purposes of
challenging an earlier Kentucky indictment, which
engendered a detainer.
In Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20
L.Ed.2d 426 (1968), the Court held that consecutive
sentences are to be viewed in the aggregate rather than as
discrete segments; thus, a petitioner serving consecutive
sentences may challenge the conviction underlying a
sentence still to be served.
In Garlotte v. Fordice, 515 U.S. 39, 115 S.Ct. 1948,
132 L.Ed.2d 36 (1995), a state prisoner who had served
the sentence on his marijuana conviction and was serving
his consecutive sentences for murder at the time he filed
his habeas petition was “in custody” on, and could
challenge, the marijuana conviction which continued to
“postpone the prisoner’s date of potential release.” The
Court distinguished Maleng v. Cook, 490 U.S. 488, 109
S.Ct. 1923, 104 L.Ed.2d 540, on the basis that Maleng
was not seeking to challenge a consecutive sentence.
“Garlotte’s challenge, which will shorten his term of
incarceration if he proves unconstitutionality, implicates
the core purpose of habeas review.”
In Clark v. Commonwealth of Pennsylvania, 892 F.2d
1142 (3d Cir. 1989), cert. denied sub nom. Castille v.
Clark, 496 U.S. 942, 110 S.Ct. 3229, 110 L.Ed.2d 675
(1990), the court of appeals held that notwithstanding
the district court’s lack of jurisdiction over the state
prisoner’s two 1974 convictions because he was no longer
in custody on those convictions, those “convictions
nonetheless are subject to limited review in the third
petition [challenging the 1979 conviction, the sentence
for which was currently being served by the state
prisoner] because of their collateral consequences on the
later 1979 conviction.”Young v. Vaughn, 83 F.3d 72 (3d Cir.), cert. denied
sub nom. Abraham v. Young, 519 U.S. 944, 117 S.Ct.
333, 136 L.Ed.2d 245 (1996), relying on Maleng v.
Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540,
and Clark v. Pennsylvania, 892 F.2d 1142, reversed the
district court’s dismissal of a petition on subject matter
jurisdiction grounds. Petitioner was sentenced in 1984
to probation and his 1989 conviction for robbery was the
basis for a revocation of probation, for which petitioner
ultimately was sentenced to five to ten years; petitioner
was serving this latter sentence (the sentence for the
robbery conviction having expired) when he filed his
petition attacking the 1989 conviction. The court of
appeals ruled that the district court should have
construed the petition as attacking the current sentence
as the filings by petitioner provided information
regarding the relationship between the 1984 and 1989
convictions and that the petitioner could challenge a
conviction for which the sentence is expired (here the
1989 robbery conviction) where the conviction was used
to enhance his current term of incarceration or where, as
here, the conviction “resulted,” in the current sentence.Coss v. Lackawanna County District Attorney, 204
F.3d 453 (3d Cir.), petition for cert. granted, 121 S. Ct.
297, 148 L.Ed.2d 238 (2000). Petitioner who
challenged 1986 conviction, for which sentence had
already been served, as adversely affecting the 1990
sentence imposed for a later, unrelated conviction
satisfied the “in custody” requirement; district court
properly considered the petition as challenging the later
conviction.The resolution of the “in custody” requirement in
petitioner’s favor does not automatically lead to a
decision on the merits; petitioner must still satisfy the
district court that the claim has been exhausted in the
state courts. Braden v. 30th Judicial Circuit Court of
Kentucky, 410 U.S. at 489-90, 93 S.Ct. at 1127.C. MootnessThe “‘case-or-controversy requirement [of Article III,
§ 2 of the United States Constitution] subsists through
all stages of federal judicial proceedings, trial and
appellate....The parties must continue to have a
“personal stake in the outcome” of the lawsuit.’” Spencer