Shannon Rowan Willis v. James A. Collins, Director, Texas Department of Criminal Justice, Institutional Division

989 F.2d 187, 25 Fed. R. Serv. 3d 1075, 1993 U.S. App. LEXIS 9512, 1993 WL 106526

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 27, 1993
• Docket: 92-2501
• Status: Published

Opinions

PER CURIAM:

Shannon Rowan Willis appeals the dismissal of his habeas corpus petition for lack of jurisdiction. Because we find that Willis has alleged that he is in custody for purposes of his petition, we reverse and remand.

I.

Shannon Rowan Willis, a/k/a Charles Swanson (appellant), is currently serving a sentence for a 1989 burglary offense in the State of Texas. Appellant’s sentence was enhanced by prior felony theft convictions occurring in 1986 and 1987. The sentences for the 1986 and 1987 convictions were enhanced, in part, by a conviction for a theft offense occurring in 1978. Appellant filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his 1978 conviction as illegal. He argued that his plea of guilty was not intelligently, voluntarily, and knowingly made because of the ineffectiveness of counsel.

The government moved to dismiss for lack of jurisdiction, citing Maleng v. Cook, 490 U.S. 488, 490-91, 109 S.Ct. 1923, 1924-25, 104 L.Ed.2d 540 (1989) (per curiam). The government argued that appellant could not satisfy the “in custody” requirement under the habeas statute because his pleadings attacked only the 1978 conviction and he had completed serving his sentence for the 1978 conviction in January 1990. See id. at 492, 109 S.Ct. at 1926 (habeas petitioner is not “in custody” for a conviction for which he has fully served his sentence). Appellant argued that the district court could review his petition because he alleged a sufficient nexus between the 1978 conviction and the sentence he was currently serving. The district court rejected this argument and dismissed the § 2254 petition for lack of jurisdiction.

II.

Appellant argues that the district court failed to consider the argument he raised in his pleadings — that a direct nexus exists between the 1978 conviction and his present sentence which is sufficient to establish that he is in custody for purposes of § 2254. Although appellant did not plead his “nexus” argument in his initial habeas petition, he did raise this argument when he objected to the government’s motion to dismiss. A party may amend a pleading at any time before a responsive pleading is served. Fed.R.Civ.P. 15(a). Because the government’s motion was not a responsive pleading, we find that appellant’s objection served as a timely amendment to his initial petition.

We now turn to the merits of appellant’s “nexus” argument. The appellant contends first that the 1978 conviction was illegal. Second, he argues that because of the illegality of the 1978 conviction, it should not have been used to elevate his 1986 and 1987 convictions from misdemean- or to third-degree felony theft. Stated differently, if the 1986 and 1987 convictions had retained their misdemeanor status, they could not have been used in 1990 to establish that he was an habitual offender to enhance his current sentence to thirty-five years, fifteen years beyond the statutory maximum. Thus Willis argues that but for the use of the illegal 1978 conviction, his current sentence could not have been enhanced by his 1986/87 convictions.

This court has held that a “positive and demonstrable nexus between [a petitioner’s] current custody and the allegedly unconstitutional [prior] conviction,” may be “sufficient to meet the jurisdictional requirements of § 2254(a).” Young v. Lynaugh, 821 F.2d 1133, 1137 (5th Cir.1987), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d 501 (1987), and cert. denied, 484 U.S. 1071, 108 S.Ct. 1040, 98 L.Ed.2d 1004 (1988). Although Maleng cast some doubt on Young, this Court has recently reaffirmed Young, recognizing a “habeas petitioner’s right to challenge a prior conviction ... when used to enhance a subsequent'sentence,” even if the term for the prior illegal sentence has expired. See Allen v. Collins, 924 F.2d 88, 89 (5th Cir.1991).²

But for the 1978 conviction Willis seeks to challenge, Willis would be serving a twenty-year sentence instead of a thirty-five-year sentence. Willis has therefore alleged a “positive and demonstrable” nexus between the 1978 conviction and the sentence he is now serving. Accordingly, we reverse the district court’s dismissal for lack of jurisdiction and remand this case to the district court for further proceedings consistent with this opinion.

REVERSED and REMANDED.

2 . Our decision in Hendrix v. Lynaugh, 888 F.2d 336 (5th Cir.1989) does not require a result different than the one we reach today. In Hendrix, the petitioner was serving a sentence for a 1982 conviction, but attacked a 1972 conviction. The petitioner argued that the collateral consequences of his expired 1972 conviction were sufficient to render him "in custody” for his 1972 conviction. For example, he contended that his 1972 conviction would adversely affect parole possibilities and eligibility for good time credit. He did not contend that the 1972 conviction increased the length of his current sentence. We affirmed the dismissal of the petition because the petitioner failed to satisfy the “in custody” requirement.