## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 10 2002 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

HULETT FOSTER, Petitioner - Appellant,

v. GLYNN BOOHER, Warden, Respondent - Appellee. No. 00-6414

Appeal from the United States District Court for the Western District of Oklahoma

(No. CIV-00-843-T)
Gloyd L. McCoy, Coyle, McCoy & Burton, Oklahoma City, Oklahoma, for Petitioner-Appellant. Lori S. Carter, Assistant Attorney General (W.A. Dr ew Edmondson, Attorney General, with her on the brief), Oklahoma City, Okl ahoma, for RespondentAppellee.

Before EBEL , KELLY , and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.-2-

Garlotte v. Fordice holds that, for purposes of habeas corpus jurisdic tion, a prisoner that is “in custody” for one of a series o f consecutive sentences is “in custody” for all of those sentences. 515 U.S. 39, 41 (1995). Foster appeals the district court’s conclusion that it lacked jurisdic tion over his 28 U.S.C. § 2254 petition because Garlotte does not apply to consecutive sentences that have been imposed by different courts at different times. Un der our jurisdiction pursuant to 28 U.S.C. § 1291 and § 2253(a), we grant a certific ate of appealability, reverse, and remand.
I Foster was convicted of grand larceny after former conviction of a felony on October 25, 1995, in the District Court of McCla in County, Oklahoma. He was sentenced to a term of ten years’ imprisonment. On September 5, 1996, Foster pled nolo contendere to second-degree forgery, conspiracy to commit grand larceny, grand larceny, and two counts of obtaining money by false pretense in the District Court of Cleveland County, Oklahoma. The Cleveland County court sentenced Foster to four terms of fifteen years andone term of one year, all to be served concurrently with each other but “consecutiv ely to all other pre-existing terms.” (R. Doc. 10 Ex. E at 2.) Foster took a di rect appeal of the McClain County conviction and also pursued state post-convi ction collateral relief; his direct appeal was denied in August 1996 and his state petition for collateral relief-3-

was denied in April 2000. On December 29, 1999, Fo ster completed his sentence for the McClain County conviction and began serving his fifteen-year sentence for the Cleveland County convictions. On April 25, 200 0, Foster filed a § 2254 petition in federal district court attacking only h is McClain County conviction. The magistrate judge recommended that the petition be dismissed for lack of jurisdiction because Foster was no longer “in cu stody” pursuant to the McClain County conviction even though he was “in custody” p ursuant to the Cleveland County convictions. According to the magistrate’s report and recommendation, “The consecutive nature of th[e] sentence [was] notrelevant to the custody requirement.” (R. Doc. 13 at 3.) The district cou rt agreed and dismissed Foster’s petition for lack of jurisdiction. Foster timely f iled an appeal, and in an unpublished order and judgment this panel affirmed. We granted Foster’s petition for rehearing.
II Federal courts may grant habeas relief to prisoners held by state authorities only when the habeas petitioner is “in custody in v iolation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); see also id. § 2241(c)(3). This requirement is jurisdictional. Oyler v. Allenbrand , 23 F.3d 292, 293–94 (10th Cir. 1994). At first glance, it would appear clear that we do n ot have jurisdiction over-4-

Foster’s claim because Foster is challenging a conv iction underlying a sentence for which he is no longer “in custody.” Indeed, th e traditional view was that a prisoner could attack only the conviction for which he was in custody and only if success on the habeas claim would lead to immediate release from that custody. For example, in McNally v. Hill , the Supreme Court applied this reasoning to affirm the dismissal of a prisoner’s habeas petitio n for lack of jurisdiction because the petition challenged a conviction underl ying a sentence which he had not begun to serve, but which was imposed consecuti vely to his current sentence. 293 U.S. 131, 135, 138 (1934). The Supreme Court abandoned this strict definition of “in custody” in the context of consecutive sentences in Peyton v. Rowe , 391 U.S. 54, 67 (1968), specifically overruling McNally . The Court in Peytonheld that a prisoner could challenge the conviction underlying a sentence thathe had not yet begun to serve but that had been imposed consecutively to the sent ence that he was currently serving. Id. The Court reasoned that the McNallyrule was poor policy; by requiring prisoners to wait until they actually sta rted to serve their later sentence, the rule forced prisoners to delay bringing habeas claims—delay that might result in the deterioration of the evidence that they woul d need to vindicate those claims. Id. at 62–63. The Court concluded that “a prisoner se rving consecutive sentences is ‘in custody’ under any one of them forpurposes” of the federal-5-

habeas statutes. Id. at 67. Garlotte is “appropriately described as Peyton ’s complement, or Peytonin reverse.” Garlotte , 515 U.S. at 41. In Garlotte , the prisoner attempted to challenge the conviction underlying a sentence thathe had finished serving, but that was also “first in a consecutive series” of se ntences that he was still serving. Id. Garlotte “[f]ollow[ed] Peyton ” and did “not disaggregate Garlotte’s sentences, but comprehend[ed] them as composing a c ontinuous stream.” Id. The Court “therefore [held] that Garlotte remain[ed] ‘i n custody’ under all of his sentences until all are served, and now may attack the conviction underlying the sentence scheduled to run first in the series.” Id

. The Garlotte Court refused to “adopt a different construction” of the habeas stat ute’s jurisdictional requirements “simply because the sentence imposed under the chal lenged conviction lies in the past rather than in the future.” Id. at 46. As a result, the Court held that the federal courts had jurisdiction over the prisoner’s claim. Application of Garlotte would therefore appear to be simple in this case. Foster is currently serving a “continuous stream” o f two consecutive sentences. He has finished serving the sentence imposed under the conviction that he is attempting to attack, but he is still serving the o ther sentences which were imposed consecutively. Under Garlotte , we are required to view the consecutive sentences “in the aggregate, not as discrete segmen ts.” Id. at 47. Therefore,-6-

Foster would appear to be “in custody” for habeas j urisdictional purposes with respect to the conviction underlying the first sent ence because that sentence is part of a consecutive series of sentences which he is still serving.
III We consider whether any other factors mandate that the apparently clear rule of Garlotte should not apply to this case.
A The facts of Garlotte are somewhat different from the facts presented he re. In Garlotte , the prisoner had been convicted and sentenced to the consecutive sentences by the same trial court at the same time. Id. at 41–42. In this case, Foster was sentenced to the two segments of his con secutive sentences by different courts at different times. The State arg ues that, on these grounds, Garlotte is not applicable. This proposed distinction runs against the case lawof the Supreme Court. In Maleng v. Cook , the Court allowed a prisoner currently serving a federal sentence to challenge the validity of a state sente nce that would commence at the end of the federal sentence. 490 U.S. 488, 493–94 (1989). Similarly, in Braden v. 30th Judicial Circuit Court , the Court held that the “in custody” requirement did not prevent a prisoner, currently serving a sentence in Alabama, from challenging a future detainer by Kentucky on differ ent charges. 410 U.S. 484,-7-

487–89 (1973). Even in Peytonitself, the consecutive sentences in question had been imposed at different times. 391 U.S. at 55–56

. Furthermore, any attempt to distinguish Garlotte on its facts ignores the language in Garlotte , which sets out a clear and broad rule that we mus t “view consecutive sentences in the aggregate, not as disc rete segments.” 515 U.S. at 47. There is no indication in the language of Garlotte that these principles are or should be limited to the particular facts that the Court was faced with in that case.
B The State contends that habeas jurisdiction is lack ing because “the invalidation of [Foster’s] 1995 conviction will notaffect the length of the sentence which [he] is currently serving.” (Appell ee’s Br. at 6.) We are uncertain what exactly the State means by th is argument. It might be making a “mootness” claim that we have no jurisd iction because we can grant no relief. We first note that “mootness” is a sepa rate question from whether a prisoner is “in custody” for purposes of § 2254. S ee Spencer v. Kemna , 523 U.S. 1, 7 (1998) (distinguishing between mootness and “i n custody” jurisdiction); Carafas v. LaVallee , 391 U.S. 234, 238 (1968) (same); Oyler , 23 F.3d at 294 (describing “in custody” jurisdiction as “a separat e and distinct jurisdictional question” from mootness). Regardless of its proper characterization, the Stat e’s argument does not1 Because we base our decision on applicable state law principles, the

question of whether federal constitutional law inde pendently requires granting Foster credit for time served under the invalidated conviction is not properly before us.

2 We express no opinion as to whether Oklahoma law or federal constitutional law would require giving Foster cred it for time served before his (continued...) -8- accurately account for Oklahoma state law. In Floy d v. State , the Oklahoma Court of Criminal Appeals stated that the situation may arise where a prisoner serving consecutive sentences on s everal convictions succeeds in having one of the sentences invalidated after it has been fully or partially served. In this ins tance . . . the state must credit the sentences remaining to be served on the valid convictions with the time served under the voided c onviction. . . . [A]ll that [is] involved [is] an adjustment of the administrative records of the prison authorities so that service o n the remaining valid sentences would commence at an earlier date. Common sense and fundamental fairness require that under such ci rcumstances the state should not ignore the period of imprisonment under the invalid sentence when an appropriate remedy is so readily available. 540 P.2d 1195, 1197 (Okla. Crim. App. 1975) (quotin g Miller v. Cox , 443 F.2d 1019, 1020–21 (4th Cir. 1971)); see also Barr v. Crisp , 555 P.2d 1070, 1071 (Okla. Crim. App. 1976). In other words, under Okl ahoma law, if Foster is successful in voiding his McClain County sentence, the time served under that sentence will be credited towards his Cleveland Cou nty sentence. 1 Foster’s fifteen-year sentence will therefore be treated by the State as if it had begun, at the latest, on the date of Foster’s Cleveland County conviction, instead of beginning after the completion of his service of th e McClain County sentence. 22 (...continued)

plea of nolo contendere. -9- Thus, if Foster’s habeas petition were successful i n the “vitiation of the expired 1995 sentence,” he might be released from prison atan earlier date, a result that would clearly “affect the length of the sentence wh ich [Foster] is currently serving.” (Appellee’s Br. at 6.) We are mindful of the lack of finality our interpre tation of the “in custody” requirement suggests concerning expired convictions . At the same time, invalidating an expired conviction is made signific antly more difficult by the oneyear limitation period on habes relief contained in 28 U.S.C. § 2244(d)(1). See Gibson v. Klinger , 232 F.3d 799, 808 (10th Cir. 2000); Miller v. Marr , 141 F.3d 976, 978 (10th Cir. 1998). We have no occasion to address that issue in this case.
C Finally, the State argues that policy grounds suppo rt its proposed distinction. The State claims first that the “conc erns expressed in Garlotte are not implicated in this case” and that those concerns in cluded that “the ability of a petitioner to challenge a conviction would hinge up on the arbitrary decision of a trial court as to which sentence would run first.” (Id. at 5.) According to the State, these concerns do not exist in this case bec ause the order of Foster’s service of the consecutive sentences depended on th e order of the imposition of3 Indeed, the order in which consecutive sentences are imposed under

Oklahoma law is potentially even more arbitrary bec ause it depends solely upon which sentence “is first received” at the correctio nal institution where the prisoner is housed, rather than the dates when the sentences are imposed. Okla. (continued...) -10- the sentences by two different judges, and therefor e the State argues that no arbitrary decision was ever made. We question whether, simply because the sentences are imposed by two separate judges, there is no risk of arbitrariness. Calendars from court to court and judge to judge can vary greatly in the backlog of cases and the speediness of pre-trial proceedings, the trial itself, and senten cing. Moreover, different prosecutors may vary in terms of the priorities the y place in prosecuting cases, in the times they set for trial for particular cases, and in the speed at which they work. Multiple charges against a single defendant may be consolidated in one court, separated into different courts, or moved fr om venue to venue, such that sentencing that might have been performed by one co urt is instead divided among two courts, or vice versa. In short, all of the vi cissitudes of the criminal court docket mean that there is no guarantee that any one case will proceed to completion ahead of another case, even where the cr iminal conduct underlying one case occurred before the other. Given this, we fail to see how arbitrariness necessarily depends on the number of courts or judg es involved in the consecutive sentencing decision. 33 (...continued)

Stat. tit. 21, § 61.1. -11- More important, however, is the fact that the Garlo tte Court did not rely on the policy grounds that the State discusses and rel ied instead on its conclusion that the rule laid out in Peytonwas controlling. Thus, the Court stated that it w as “[f]ollowing Peyton ” in holding that consecutive sentences are viewed in the aggregate and that “therefore” the prisoner in Garl otte could challenge the earlier sentence. Garlotte , 515 U.S. at 41. The Court in Garlotte was motivated by a desire to establish a clear and consistent rule reg arding consecutive sentences. “Having construed the statutory term ‘in custody’ t o require that consecutive sentences be viewed in the aggregate, we will not n ow adopt a different construction simply because the sentence imposed un der the challenged conviction lies in the past rather than in the futu re.” Id. at 46. Indeed, nowhere in the Garlotte opinion does the Court mention any “arbitrariness” rationale; the State’s argument appears to be based solely on the Court’s description of the facts of Garlotte’s sentencing in state court, id. at 41–42, a description that was not relied upon at all by the Court in reaching its con clusion. The State’s attempted policy distinction is therefo re weak and unsupported, and it certainly is not sufficient to justify a dep arture on our part from the clear and explicit command of the Supreme Court that a pr isoner serving consecutive-12-

sentences “remains ‘in custody’ under all of his se ntences until all are served.” Id. at 41.
IV The prior order and judgment filed August 10, 2001 is VACATED , and Foster’s application for a certificate of appealabi lity is GRANTED . The judgment of the district court is REVERSED , and the case is REMANDED for proceedings consistent with this opinion.