Thomas Marion Wright v. United States

116 F.3d 488, 1997 U.S. App. LEXIS 20477, 1997 WL 306412

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 5, 1997
• Docket: 95-35922
• Status: Unpublished

Opinion

116 F.3d 488

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Thomas Marion WRIGHT,
v.
UNITED STATES of America, Defendant-Appellee.

No. 95-35922.

United States Court of Appeals,
Ninth Circuit.

Submitted June 2, 1997.*
Decided June 5, 1997.

Appeal from the United States District Court for the Western District of Washington, Nos. CV-94-05409-JET, CR-85-00033-01-JET; Jack E. Tanner, District Judge, Presiding.

Before: WRIGHT, PREGERSON and THOMPSON, Circuit Judges.

MEMORANDUM**

Thomas Wright appeals the district court's denial of his motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Section 2255 allows a prisoner "in custody" to challenge a federal sentence. 28 U.S.C. § 2255. Wright was not in custody for the conviction he attempted to challenge in his habeas motion, and the district court therefore lacked jurisdiction over the motion.

The Supreme Court's decision in Garlotte v. Fordice, 115 S.Ct. 1948 (1995) does not mandate a different result. In Garlotte, the Court allowed a defendant to bring a habeas petition challenging a conviction when the defendant had completed the sentence for this conviction. Id. at 1952. The defendant, however, was still serving a consecutive sentence when he brought his habeas petition. Id. The Court reasoned that the defendant's challenge, if successful, would shorten his term of incarceration. Id.

Wright, by contrast, was serving a parole and special parole sentence which was concurrent to the sentence for the conviction he challenged in his habeas motion. A successful habeas petition would have not changed his term of incarceration under the parole and special parole sentence. The rationale of Garlotte does not extend to cases which involve concurrent sentences.

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a); 9th Cir. R 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3