Armstrong v. State of Oregon et al

Filing 25

Order: Petitioner's Petition 2 is denied. This proceeding is dismissed. Signed on January 17, 2011 by Chief Judge Ann L. Aiken. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
HAROLD LEONARD ARMSTRONG 1
Petitioner

Civil No. 11-884-AA

l

v.

ORDER

STATE OF OREGON 1 et al'

l

Respondents.
AIKEN, District Judge.
A petition or motion for habeas corpus relief must be
filed by a person who is lIin custodyll at the time of filing.
28 U.S.C.
Wood,

36

§§

2241(c}

F.3rd 1459 1

1

2254(a)1 2255.; see also

1462

(9 th Cir.

1994)

l

Chacon v.

(habeas

corpus

petition not moot based solely on petitioner's subsequent
release from custody).

The custody requirement is satisfied

if an un-incarcerated petitioner is subject to restraints not
shared by the public generally.
~===I

411 U.S. 345 1 351 (1973)

1 - ORDER

See l

Hensley v. Municipal

(release prior to service of

sentence); Jones v. CUnningham

371 U.S. 236, 242 43

I

(1963)

(release on parole) .

An expired or completely served sentence does not meet
the

in custody requirement,

even

if

that

sentence

could

subsequently be used to enhance a future sentence, unless the
petitioner is serving the second of consecutive sentences.
Garlotte

v.

Fordice,

115

S.Ct.

1948,

1952

(1995)

(consecutive sentences) i Malenge v. Cook, 490 U.S. 488, 491-92
(1989) (per curiam)

(basis for later enhancement) .

In this case, petitioner seeks to challenge a February
13 I

1975 conviction for which he was sentenced to 3 years

probation.

Petitioner

"successfully

completed

alleges
in

that

1978. II

his

probation

Petition

(#1)

p.

was
3.

Accordingly, petitioner sentence has been completely served or
has expired.
Petition,

Therefore,

petitioner

is

based on the allegations of the
not

challenging the conviction he

in

custody

seeks

for

purposes

of

to challenge in this

proceeding.
By Order (#5) entered September 9, 2011, petitioner was
ordered to show cause within 30 days why his petition should
not be denied on the ground that he is not "in custody" for
purposes of seeking habeas corpus relief.
On January 12, 2011, petitoner filed a Response to the
court's show cause order. (#24).
V.

Petitioner relies on Malenge

Cook I supra, for the proposition that he is may "challenge

prior conviction used to enhance existing sentence. II
2 - ORDER

Response

(#24), p. 2.
The question presented by this case is whether a habeas
petitioner remains "in custody" under a conviction after the
sentence imposed for it has fully expired, merely because of
the possibility that the prior conviction will be used to
enhance the sentences imposed for any subsequent crimes for
which he is convicted.
this case, of course,

We hold that he does not.

. In

the possibility of a sentence upon a

subsequent conviction being enhanced because of the prior
conviction actually materialized,

but we do not think that

required a different conclusion."

Malenge v. Cook, supra at

p.

492.

Thus,

Malenge

does

not

support

petitioner's

contention, and in fact, stands for the opposite ..
The record before the court establishes that petitioner
is not in custody for purposes of challenging his February 13,
1975 conviction.
Petitioner's Petition (#1) is denied.

This proceeding is

dismissed.
IT IS SO ORDERED.
DATED this ~day of

Ann Aiken
united States District Judge

3 - ORDER