Harvey F. Garlotte v. Kirk Fordice, Governor

Fifth Circuit

Harvey F. Garlotte v. Kirk Fordice, Governor

72 F.3d 34, 1995 U.S. App. LEXIS 36620, 1995 WL 755824

CourtCourt of Appeals for the Fifth Circuit

DecidedDecember 21, 1995

Docket92-7396

StatusPublished

This text of 72 F.3d 34 (Harvey F. Garlotte v. Kirk Fordice, Governor) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Harvey F. Garlotte v. Kirk Fordice, Governor, 72 F.3d 34, 1995 U.S. App. LEXIS 36620, 1995 WL 755824 (5th Cir. 1995).

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Opinion

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:

Petitioner Harvey F. Garlotte (“Garlotte”) brings a habeas corpus action pursuant to 28 U.S.C. § 2254, challenging a 1985 state conviction for possession of marijuana. The district court, adopting the magistrate judge’s Report and Recommendation, dismissed the petition. We granted Garlotte’s request for a Certificate of Probable Cause, ordering Respondent Kirk Fordice (“Fordice”) to brief the issue of whether the district court prematurely dismissed Garlotte’s petition without requiring an answer or conducting an eviden-tiary hearing.

Garlotte was sentenced to three years on the possession of marijuana charge. At the same time he received two concurrent life sentences for murder to run consecutive to that three year sentence. The present petition targets only the marijuana conviction which Garlotte has already discharged. Con- *35 eluding that Garlotte was not “in custody” for purposes of § 2254, we affirmed the district court’s dismissal of the petition for lack of jurisdiction pursuant to 28 U.S.C. § 2254. The Supreme Court subsequently reversed that affirmance, holding that Garlotte remains “in custody” under all of his consecutively imposed sentences until all are served and may attack the conviction underlying the sentence scheduled to run first in the series. Garlotte v. Fordice, — U.S. -, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995). Therefore, the Supreme Court remanded the case for further proceedings. Id.

Garlotte advances fifteen points of error on appeal, contending that his guilty plea was unlawful on various grounds, including ineffective assistance of counsel, double jeopardy, and generally whether his plea was knowing, intelligent and voluntary. Having reviewed the record and briefs on appeal, we have concluded that there is no merit to any of his grounds of error. We therefore affirm the district court’s dismissal of his habeas corpus petition.

AFFIRMED.

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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM:

Petitioner Harvey F. Garlotte (“Garlotte”) brings a habeas corpus action pursuant to 28 U.S.C. § 2254, challenging a 1985 state conviction for possession of marijuana. The district court, adopting the magistrate judge’s Report and Recommendation, dismissed the petition. We granted Garlotte’s request for a Certificate of Probable Cause, ordering Respondent Kirk Fordice (“Fordice”) to brief the issue of whether the district court prematurely dismissed Garlotte’s petition without requiring an answer or conducting an eviden-tiary hearing.

Garlotte was sentenced to three years on the possession of marijuana charge. At the same time he received two concurrent life sentences for murder to run consecutive to that three year sentence. The present petition targets only the marijuana conviction which Garlotte has already discharged. Con- *35 eluding that Garlotte was not “in custody” for purposes of § 2254, we affirmed the district court’s dismissal of the petition for lack of jurisdiction pursuant to 28 U.S.C. § 2254. The Supreme Court subsequently reversed that affirmance, holding that Garlotte remains “in custody” under all of his consecutively imposed sentences until all are served and may attack the conviction underlying the sentence scheduled to run first in the series. Garlotte v. Fordice, — U.S. -, 115 S.Ct. 1948, 132 L.Ed.2d 36 (1995). Therefore, the Supreme Court remanded the case for further proceedings. Id.

Garlotte advances fifteen points of error on appeal, contending that his guilty plea was unlawful on various grounds, including ineffective assistance of counsel, double jeopardy, and generally whether his plea was knowing, intelligent and voluntary. Having reviewed the record and briefs on appeal, we have concluded that there is no merit to any of his grounds of error. We therefore affirm the district court’s dismissal of his habeas corpus petition.

AFFIRMED.

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72 F.3d 34, 1995 U.S. App. LEXIS 36620, 1995 WL 755824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harvey-f-garlotte-v-kirk-fordice-governor-ca5-1995.

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