Dodge v. Merrimack

2001 DNH 201

• Court: District Court, D. New Hampshire
• Decided: October 31, 2001
• Docket: CV-00-309-M
• Status: Published

Opinion

Dodge v . Merrimack CV-00-309-M 10/31/01 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Raven C . Dodge,III Petitioner

v. Civil N o . 00-309-M Opinion N o . 2001 DNH 201 Superintendent, Merrimack Count House of Correction, Respondent

O R D E R

This petition for habeas relief (28 U.S.C. § 2254), was

originally transferred to the court of appeals for consideration,

since it appeared to be a second or successive petition over

which this court had no jurisdiction. The court of appeals

concluded that it was not a second or successive petition,

reasoning that it challenged convictions and sentences imposed in

the Concord District Court, while Dodge’s earlier habeas petition

challenged a felony conviction for burglary imposed a few months

later in the New Hampshire Superior Court. Accordingly, the

court of appeals remanded this petition for review, but seemed to

express some doubt about it’s conclusion, writing, “should it develop that our reading of the record is wrong or that the

petitioner i s , in fact, attempting to again challenge his

burglary conviction [the subject of his earlier § 2254 petition],

the district court remains free to transfer the matter back” to

the court of appeals. Dodge v . Superintendent, N o . 00-2056,

Order dated January 3, 2001.

This petition, as well as the “Amended Petition” filed on

June 4 , 2001, like many filed by pro se prisoners, is written in

something of a stream of consciousness style that understandably

tries to throw as broad a legal reach as possible in search of

some winning argument. But, be that as it may, although

petitioner makes many references to his superior court burglary

conviction, this petition is construed not to again challenge

Dodge’s burglary conviction in the superior court, but to

challenge only his earlier misdemeanor convictions in the state

district court. See Amended Petition. Following the court of

appeals’ lead, however, I point out to petitioner that if it

should develop that my construction is wrong, then petitioner is

free to seek leave to file a second or successive petition from

2 the appellate court. 28 U.S.C. § 2244. However, petitioner

should try to make it very clear just what conviction he seeks to

challenge.

After this petition was remanded, the Magistrate Judge

reviewed it and recommended dismissal on grounds that petitioner

did not meet the “in custody” requirement for habeas relief

because the misdemeanor convictions he is challenging fully

expired before he filed the petition. See 28 U.S.C. § 2254(a).

This court did not approve or adopt that recommendation because

it was not clear from the record whether petitioner, who is still

incarcerated, was serving consecutive or concurrent sentences.

If he was serving consecutive sentences, then he could probably

take advantage of the “in custody” rule announced in Garlotte v .

Fordice, 515 U.S. 39 (1995), and challenge his 1996 misdemeanor

convictions. Accordingly, petitioner was directed to file a

supplemental pleading aimed at clarifying his status relative to

the sentences imposed in the state district court in July of

1996, and the subsequent sentence imposed in the superior court

in November of 1996. He did so and, after further review, the

3 Magistrate Judge has again recommended dismissal for failure to

meet the “in custody” requirement (document n o . 1 6 ) .

This petition for post-conviction relief, in which Dodge

challenges his 1996 misdemeanor convictions in the Concord

District Court, is necessarily dismissed. As the Magistrate

Judge notes, petitioner is not serving consecutive sentences.

His misdemeanor convictions and sentences fully expired, at the

latest, by February 7 , 1998. Therefore, he was not “in custody”

on the challenged misdemeanor convictions when he filed this §

2254 petition on June 2 3 , 2000. See Maleng v . Cook, 490 U.S. 488

(1989)(holding that habeas petitioner is not “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 sentences imposed for any subsequent crimes of

which he is convicted).1

1 Again, petitioner is not challenging the felony sentence he is currently serving as “enhanced” by the misdemeanor convictions challenged in this petition. See e.g., Lackawanna County District Attorney v . Coss, 532 U.S. 394 (2001). And, were he to do s o , he would necessarily be filing a second or successive petition, requiring the prior approval of the court of appeals.

4 Conclusion

The report and recommendation is approved and adopted. This

petition is dismissed for lack of jurisdiction. The clerk shall

close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

October 3 1 , 2001

cc: Raven C . Dodge, III