UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES GUY ARNOLD, 

Petitioner-Appellant,

v.  No. 01-6863

C. MARK HOFFE; ATTORNEY

GENERAL OF WEST VIRGINIA,

Respondents-Appellees. 

Appeal from the United States District Court

for the Northern District of West Virginia, at Martinsburg.

W. Craig Broadwater, District Judge.

(CA-01-11-3)

Submitted: October 31, 2001

Decided: November 20, 2001

Before WILKINS, MICHAEL, and GREGORY, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion. 

COUNSEL

James Guy Arnold, Appellant Pro Se. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 
OPINION

PER CURIAM: 

James Guy Arnold appeals the district court’s order denying relief

on his petition for habeas relief or for a writ of error coram nobis pursuant to 28 U.S.C. §§ 1651, 2241 (1994), which the district court construed as a petition pursuant to 28 U.S.C.A. § 2254 (West 1994 &

Supp. 2001).1 We remand for further factual findings. 

Pursuant to 28 U.S.C. § 2254(a), federal courts have jurisdiction to

entertain an application for habeas relief only if a petitioner is "in custody" in violation of the laws, treaties, or Constitution of the United

States. The custody requirement must be established at the time petitioner files his petition. Carafas v. LaVallee, 391 U.S. 234, 238

(1968). A review of the record shows Arnold was no longer in prison

pursuant to his state conviction at the time he filed his § 2254 petition.

However, it is unclear from the record before us whether he was serving a probationary sentence or was on parole at the time of filing. See

Jones v. Cunningham, 371 U.S. 236, 242-43 (1963); Tinder v. Paula,

725 F.2d 801, 803 (1st Cir. 1984). Thus, the record before us is insufficient to determine whether the district court had jurisdiction to consider Arnold’s petition. Further, we find the district court incorrectly

dismissed Arnold’s petition based on the concurrent sentencing doctrine, as the record indicates Arnold did not receive concurrent sentences and Arnold alleged collateral consequences continue as a result

of his expired state sentence.2See United States v. Walker, 677 F.2d

1Arnold contends the district court erred in so construing his petition.

However, Arnold’s petition is properly construed as one under § 2254

because it is based on his custody pursuant to the judgment of a state

court and he alleges his conviction is in violation of the Constitution. See

28 U.S.C.A. § 2254(a) (West 1994 & Supp. 2001). Moreover, a writ of

error coram nobis is not available in federal court to challenge a state

criminal judgment. Sinclair v. Louisiana, 679 F.2d 513, 514-15 (5th Cir.

1982) (finding no jurisdiction to issue writ where federal court did not

impose sentence). 

2Moreover, we note collateral consequences are presumed to flow

from a wrongful conviction. See Spencer v. Kemna, 523 U.S. 1, 7-8

(1998). 

2 ARNOLD v. HOFFE
1014, 1015 (4th Cir. 1982); United States v. Hudacek, 24 F.3d 143,

145 n.2 (11th Cir. 1994). Accordingly, we grant a certificate of

appealability, vacate the district court’s dismissal order, and remand

for further factual findings. Moreover, we direct the court to consider

the merits of Arnold’s petition if it finds he was "in custody" within

the meaning of the statute. 

Arnold’s motions for appointment of counsel, to adopt the record

in Arnold v. America Online, 01-1559, and for a certificate of probable cause, are denied. His motion to proceed in forma pauperis on

appeal is granted. We dispense with oral argument because the facts

and legal contentions are adequately presented in the material before

the court and argument would not aid the decisional process. 

VACATED AND REMANDED

ARNOLD v. HOFFE 3