Larry A. Harper v. David C. Evans, Commissioner

Eleventh Circuit

Larry A. Harper v. David C. Evans, Commissioner

941 F.2d 1538, 1991 U.S. App. LEXIS 21835, 1991 WL 166730

CourtCourt of Appeals for the Eleventh Circuit

DecidedSeptember 18, 1991

Docket90-8312

StatusPublished

Cited by8 cases

This text of 941 F.2d 1538 (Larry A. Harper v. David C. Evans, Commissioner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Larry A. Harper v. David C. Evans, Commissioner, 941 F.2d 1538, 1991 U.S. App. LEXIS 21835, 1991 WL 166730 (11th Cir. 1991).

Pincite

Opinion

PER CURIAM:

Appellant Larry A. Harper, a state prisoner, brings this appeal from the district court’s order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Harper’s petition challenges the legality of his 1972 conviction in Clayton County, Georgia for armed robbery. Although the sentence from this conviction expired in 1982, Harper is currently incarcerated as the result of a life sentence imposed on a 1981 conviction for armed robbery in Spaulding County, Georgia. Harper alleges that his 1972 conviction was used in aggravation in setting his current sentence. He also alleges that as a result of his 1972 conviction, his parole for the 1981 conviction was denied and that his tentative parole date was extended. The district court, in adopting the magistrate's report and recommendation, found that under Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), Harper had not satisfied the “in custody” requirement for purposes of challenging the 1972 con *1539 viction because his sentence had already expired. See 28 U.S.C. § 2254(a). As a result, it held that it lacked subject matter jurisdiction to entertain Harper’s petition.

In Battle v. Thomas, 923 F.2d 165 (11th Cir.1991), this court, in interpreting Mai-eng, held that a habeas petitioner may challenge a fully expired prior conviction if he is currently incarcerated as a result of a current sentence that was enhanced by his prior conviction. See id. at 168; see also Fox v. Kelso, 911 F.2d 563, 567-68 (11th Cir.1990). Other circuits have reached similar conclusions. See Battle, 923 F.2d at 166 n. 8. Having read his papers with the liberality due to pro se petitioners, we find that Harper claims that his current sentence was enhanced by his allegedly invalid 1972 conviction for armed robbery and that he has satisfied the “in custody” requirement.

The State, however, contends this requirement is not satisfied because “the enhanced sentence is not being attacked, but solely the expired sentence and [Harper] is not in custody pursuant to that sentence.” This is a distinction without a difference. Whether or not the petition is framed facially in terms of an attack on the enhanced sentence or the expired sentence, the reality is that Harper is in “in custody” as a result of a prior and alleged illegal conviction. See id. at 165-66 (holding that petitioner had jurisdiction to challenge prior conviction, despite fact that petition was not framed as attack on enhanced sentence). The district court therefore erred in dismissing his petition on jurisdictional grounds.

The order of the district court is VACATED and the case REMANDED for further proceedings not inconsistent with this opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM:

Appellant Larry A. Harper, a state prisoner, brings this appeal from the district court’s order dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Harper’s petition challenges the legality of his 1972 conviction in Clayton County, Georgia for armed robbery. Although the sentence from this conviction expired in 1982, Harper is currently incarcerated as the result of a life sentence imposed on a 1981 conviction for armed robbery in Spaulding County, Georgia. Harper alleges that his 1972 conviction was used in aggravation in setting his current sentence. He also alleges that as a result of his 1972 conviction, his parole for the 1981 conviction was denied and that his tentative parole date was extended. The district court, in adopting the magistrate's report and recommendation, found that under Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989), Harper had not satisfied the “in custody” requirement for purposes of challenging the 1972 con *1539 viction because his sentence had already expired. See 28 U.S.C. § 2254(a). As a result, it held that it lacked subject matter jurisdiction to entertain Harper’s petition.

In Battle v. Thomas, 923 F.2d 165 (11th Cir.1991), this court, in interpreting Mai-eng, held that a habeas petitioner may challenge a fully expired prior conviction if he is currently incarcerated as a result of a current sentence that was enhanced by his prior conviction. See id. at 168; see also Fox v. Kelso, 911 F.2d 563, 567-68 (11th Cir.1990). Other circuits have reached similar conclusions. See Battle, 923 F.2d at 166 n. 8. Having read his papers with the liberality due to pro se petitioners, we find that Harper claims that his current sentence was enhanced by his allegedly invalid 1972 conviction for armed robbery and that he has satisfied the “in custody” requirement.

The State, however, contends this requirement is not satisfied because “the enhanced sentence is not being attacked, but solely the expired sentence and [Harper] is not in custody pursuant to that sentence.” This is a distinction without a difference. Whether or not the petition is framed facially in terms of an attack on the enhanced sentence or the expired sentence, the reality is that Harper is in “in custody” as a result of a prior and alleged illegal conviction. See id. at 165-66 (holding that petitioner had jurisdiction to challenge prior conviction, despite fact that petition was not framed as attack on enhanced sentence). The district court therefore erred in dismissing his petition on jurisdictional grounds.

The order of the district court is VACATED and the case REMANDED for further proceedings not inconsistent with this opinion.

Cite This Page — Counsel Stack

Bluebook (online)

941 F.2d 1538, 1991 U.S. App. LEXIS 21835, 1991 WL 166730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/larry-a-harper-v-david-c-evans-commissioner-ca11-1991.

Opinion

Related

Cite This Page — Counsel Stack