Maloney v. Belleque
Filing
46
OPINION AND ORDER. The Court DENIES the Petition for Writ of Habeas Corpus and DISMISSES this action. The Court DENIES a certificate of appealability as Petitioner has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c) (2). IT IS SO ORDERED. Signed on 10/26/2011 by Judge Anna J. Brown. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
CONN JOSEPH MALONEY,
Case No. 3:09-cv-00262-BR
Peti tioner,
OPINION AND ORDER
v.
BRIAN BELLEQUE,
Respondent.
CONN JOSEPH MALONEY
SID #8286458
Oregon State Penitentiary
2605 State Street
Salem, OR 97310
Petitioner Pro Se
JOHN R. KROGER
Attorney General
LYNN DAVID LARSEN
Attorney-In-Charge
Department of Justice
1162 Court Street NE
Salem, OR 97301
Attorneys for Respondent
1 - OPINION AND ORDER -
BROWN, Judge.
Petitioner,
an
inmate
at
the
oregon
State
Penitentiary,
brings this habeas corpus action pursuant to 28 U.S.C.
For the reasons that follow,
2254.
§
the Court DENIES the Petition for
Writ of Habeas Corpus.
BACKGROUND
On September 23, 1999, a Clatsop County grand jury indicted
Petitioner on one count of Rape in the First Degree, one count of
Attempted Sexual Abuse in the First Degree,
and five counts of
Using a Child in a Display of Sexually Explicit Conduct.
first
two counts were dismissed,
and the
The
remaining five
were
presented to the trial court in a stipulated facts trial.
The
trial judge found Petitioner guilty on all five counts of Using a
Child in a
Display of Sexually Explicit Conduct and sentenced
Petitioner to 72 months on each count, with a 36-month minimum.
The judge designated all five sentences to run concurrently with
each other and concurrently with sentences Petitioner had received
in a prior Clatsop County case.
Petitioner filed a direct appeal,
Appeals affirmed without opinion.
745, 62 P.3d 886 (2003).
but the Oregon Court of
State v. Maloney, 185 Or. App.
Petitioner did not seek review from the
Oregon Supreme court.
Petitioner then sought state post-conviction relief ("PCR").
Following an
evidentiary hearing,
2 - OPINION AND ORDER -
the
PCR trial
judge
denied
relief.
Petitioner appealed,
affirmed without
review.
denied,
but the Oregon Court of Appeals
opinion and the
Oregon Supreme Court
denied
Maloney v. Belleque, 221 Or. App. 702, 191 P.3d 813, rev.
345 Or. 301, 194 P.3d 17 (2008).
On March 6, 2009,
Petitioner file his Petition for Writ of
Habeas Corpus with this Court.
Respondent argues the Petition
must be denied because the sentences at issue have fully expired
and Petitioner is no longer in custody for the convictions which
he seeks to challenge herein.
Petitioner counters that he remains
in
sentences
custody
because
other
were
enhanced
by
the
convictions at issue here and because he is subject to future
consequences such as the requirement that he register as a sex
offender and the potential that these convictions could be used to
enhance future sentences.
DISCUSSION
Under 28 U.S.C.
§
2254,
The Supreme Court, a Justice thereof, a circuit judge,
or a district court shall entertain an application for
a write of habeas corpus in behalf of a person in
custody pursuant to the judgment of a State court only
on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.
28 U.S.C.
§
2254(a) (emphasis added).
establish that
petition
for
he \.,as
this
"in custody"
Court
3 - OPINION AND ORDER -
to
have
Petitioner must, therefore,
at
the
time
jurisdiction.
he
filed
his
Carafas
v.
391 U. S.
LaVallee,
234,
239-40
(1968 )
(petitioner must be
in
custody at the time petition is filed).
u.s.
In Maleng v. Cook, 490
Court
interpreted
the
488, 490-91 (1989), the Supreme
statutory
custody
language
for
habeas
eligibility as requiring a habeas petitioner be "in custody" under
the
conviction
or
sentence
collateral
"'[O)nce
the
conviction has completely expired,
sentence imposed for a
the
consequences
being
of
the
challenged.
conviction are
not
themselves
sufficient to render an individual "in custody" for the purposes
of a habeas attack upon it.'"
956
(9th
Cir.),
cert.
546
denied,
U.S.
1043
(2005)
(quoting
490 U.S. at 492).
Maleng,
The
question
Court
in
whether
Maleng
limited
petitioner
is
conviction and "express [ed)
[expired)
attack
Resendiz v. Koven sky, 416 F.3d 952,
its
"in
holding
custody"
to
for
the
the
narrow
expired
no view on the extent to which the
conviction itself may be subject to challenge in the
upon
[actually)
interpreted
the
[current
or
used to enhance."
Maleng
to
future)
Id.
permit
sentences
at 494.
federal
which
it
was
The Ninth Circuit
courts
to
"retain
jurisdiction by liberally construing [a petition challenging an
expired conviction) as an attack on [a subsequent) conviction, as
enhanced by the allegedly illegal [expired) conviction."
4 - OPINION AND ORDER -
Feldman
v. Perrill,
Weston,
902 F.2d 1445, 1448 (9th Cir. 1990); see also Brock v.
31 F.3d 887, 890 (9th Cir. 1994).
Here,
the
Petition
cannot
reasonably be
construed
as
an
attack on the other, unexpired sentences Petitioner continues to
serve.
It is clear from the face of the Petition that Petitioner
is instead challenging the legality of the convictions at issue.
As Respondent notes, moreover, Petitioner is currently challenging
his other sentences in another habeas corpus action.
Finally,
Petitioner has not shown that the convictions he attacks in this
case actually enhanced his other sentences.
To
the
extent
Petitioner
argues
that
the
sex
offender
registration requirement tied to these convictions somehow renders
him "in custody," his argument is without merit.
In McNab v. Kok,
the Ninth Circuit applied the holding in Maleng to a petition
filed by a sex offender subject to the registration requirements
of Oregon's sex offender registration statutes.
(9th Cir. 1999).
170 F.3d 1246
The Ninth Circuit concluded that because "sex
offenders subject to registration in 'Oregon are free to move to a
new place of residence so long as they notify law enforcement
officials of their new address,"
Oregon law does not place an
offender "in custody" within the meaning of
§
2254 (a).
McNab, 170
F.3d at 1247 (citing Williamson v. Gregoire, 151 F.3d 1180, 1184
(9th Cir. 1998) (construing Washington law)) and Henry v. Lungren,
5 - OPINION AND ORDER -
164
F.3d 1240,
1241-42
(9th Cir.
1999)
(construing California
law) ) .
Finally,
to the extent Petitioner argues these convictions
may at a later date be used to enhance a future sentence,
argument is also without merit.
this
A fully expired conviction that
may at a later date be used to enhance a future sentence does not
satisfy the "in custody" requirement.
Maleng, 490 U.S. at 490-91
(citing Jones v. Cunningham, 371 U.S. 236, 243 (1963)).
"once
the
expired,
sentence
imposed
for
a
conviction
has
In fact,
completely
the collateral consequences of that conviction are not
themselves sufficient to render an individual 'in custody' for the
purposes of a habeas attack upon it."
Maleng,
490 U.S. at 492.
CONCLUSION
For these reasons, the Court DENIES the Petition for writ of
Habeas Corpus and DISMISSES this action.
The Court DENIES a certificate of appealability as Petitioner
has
not
made
a
substantial
constitutional right.
showing
of
the
denial
of
See 28 U.S.C. § 2253(c) (2).
IT IS SO ORDERED.
DATED this
~day
of October, 2011.
~
United States District Judge
6 - OPINION AND ORDER -
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