United States v. Wilson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS MAY 14 1998 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-4196 v. (D.C. No. 97-CV-234-G) (District of Utah) DAVID LAWRENCE WILSON,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before ANDERSON, MCKAY and LUCERO, Circuit Judges.

David Lawrence Wilson filed a pro se petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2255 in the United States District Court for the District of

Utah alleging (1) that his present sentence has been improperly calculated by the

Bureau of Prisons and (2) that this sentence was improperly enhanced by two

earlier, unconstitutional convictions. The district court, adopting the magistrate

judge’s Report and Recommendation, dismissed the petition for lack of

* The case is unanimously ordered submitted without oral argument pursuant to Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. jurisdiction. Because the petitioner has made a substantial showing of the denial

of a constitutional right, we grant a certificate of appealability. See 28 U.S.C. §

2253(c)(2).

Petitioner pleaded guilty to a single count of attempted bank robbery in

violation of 18 U.S.C. § 2113(a) and was sentenced to a 151-month term of

imprisonment. See United States v. Wilson , 10 F.3d 734, 735 (10th Cir. 1993).

Petitioner’s first claim is that the Bureau of Prisons has failed to credit him for

585 days spent in federal custody prior to this conviction. Because this is an

attack on the execution of the sentence rather than its validity, § 2255 relief is

unavailable. See United States v. Scott , 803 F.2d 1095, 1096 (10th Cir. 1986);

see also Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996). Petitioner’s claim

would be properly addressed in a § 2241 habeas petition filed in the district where

he is confined. Scott , 803 F.2d at 1096. This claim was therefore correctly

dismissed without prejudice for lack of jurisdiction.

Petitioner also claims that his present sentence was improperly enhanced by

prior, unconstitutional convictions in Florida and California. The district court

dismissed this challenge for lack of jurisdiction, interpreting the petition as an

improper collateral attack on the Florida and California convictions. As

petitioner correctly notes, however, although a defendant may not challenge a

fully-expired conviction in isolation, if the attack is directed at the sentence under

-2- which the defendant is in custody, “the defendant may argue that his present

sentence is improper because it has been enhanced by a prior, unconstitutional

conviction.” Gamble v. Parsons , 898 F.2d 117, 118 (10th Cir. 1990); see also

Collins v. Hesse , 957 F.2d 746 (10th Cir. 1992). Construed with the deference to

which pro se litigants are entitled, appellant’s habeas petition should be read “as

asserting a challenge to his present sentence to the extent that it has been

enhanced by the allegedly invalid prior conviction[s].” Gamble , 898 F.2d at 118.

The district court improperly dismissed the petition for lack of jurisdiction as to

this claim.

We REVERSE the district court’s dismissal of appellant’s petition for

habeas corpus and REMAND for further proceedings consistent with this order

and judgment.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge

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