1Our previous opinion referred to the 1978 action's being enhanced by a 1958 conviction. The

panel apparently confused the facts of Thompson's case with those of Maleng v. Cook, 490 U.S.

488, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989) (per curiam). 

United States Court of Appeals,

Fifth Circuit.

No. 91-6109.

Lawrence Edward THOMPSON, Petitioner-Appellant,

v.

James A. COLLINS, Director, Texas Dept. of Criminal Justice, Institutional Division,

Respondent-Appellee.

Jan. 21, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before REAVLEY, SMITH and EMILIO M. GARZA, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

I.

Lawrence Edward Thompson brought this habeas corpus action to challenge his 1974 Texas

conviction for burglary. The district court dismissed the petition for lack of jurisdiction because

Thompson was not "in custody" as required by 28 U.S.C. § 2254. We reversed and remanded for

further proceedings, liberally construing Thompson's petition as a challenge to his 1978 conviction,

which was enhanced by his 1974 conviction.1 In reliance upon Maleng, we held that a prisoner meets

the "in custody" requirement under these circumstances. Maleng holdsthat a prisoner may challenge

a conviction for which he is presently incarcerated and which was potentially enhanced by an

unconstitutional prior conviction. 490 U.S. at 492, 109 S.Ct. at 1925. At the same time, the Court

held that a prisoner whose sentence hasfully expired before he files his habeas petition does not meet

the "in custody" requirement. Id.

On remand, the district court for the Northern District of Texas transferred the case to the

Southern District of Texas, the proper venue for a challenge to the 1978 conviction. On September

13, 1991, the district court again dismissed Thompson's petition for lack of jurisdiction, holding that
Thompson's sentence for his 1978 conviction had expired and that under Maleng, the district court

no longer had jurisdiction because Thompson was no longer in custody. We granted Thompson a

certificate of probable cause to appeal.

II.

Thompson arguesthat the district court erred in dismissing his petition because his sentence

had not expired at the time he filed his original petition. Relying upon Maleng, Thompson contends

that he meets the "in custody" requirement so long as he was in custody when he filed his original

petition. We disagree. Maleng merely restated the holding in Carafas v. LaVallee, 391 U.S. 234,

238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968), in which the Court held that a petitioner who was

in custody pursuant to a conviction when he filed his petition satisfied the "in custody" requirement

even though he was released prior to completion of the litigation.

In Escobedo v. Estelle, 655 F.2d 613 (5th Cir. Unit A Sept.1981) (per curiam), we declined

to extend the Carafas holding to a scenario similar to Thompson's. Escobedo had challenged a 1970

conviction used to enhance his 1977 conviction, for which he was incarcerated when he filed his

petition. While the case was pending, Escobedo's sentence expired. We held that Escobedo no

longer met the "in custody' requirement:

... [A] habeas petitioner does not meet the statutory "in custody" requirement when he is no

longer (and was not at the time he filed his petition) in custody pursuant to the conviction he

attacks, and neither is he presently in custody pursuant to another conviction that is positively

and demonstrably related to the conviction he attacks; this is so despite the fact that he was

in custody pursuant to the positively and demonstrably related conviction at the time he filed

his petition.

Id. at 616-17.

We conclude that Maleng did not disturb this holding. Maleng, again, only restated the rule

of Carafas, which we distinguished in Escobedo. The Maleng holding does nothing more than

establish that a habeas petitioner meetsthe "in custody" requirement where he challenges a conviction

used to enhance another co nviction for which he is currently in custody. In this circuit, we first

recognized this principle in Sinclair v. Blackburn, 599 F.2d 673, 676 (5th Cir.1979), cert. denied,

444 U.S. 1023, 100 S.Ct. 684, 62 L.Ed.2d 656 (1980). In Escobedo, we concluded that the rules

in Carafas and Sinclair could not be combined. 655 F.2d at 616. Because Maleng does not affect
our Escobedo holding, we conclude that the district court properly dismissed Thompson's petition.

We need not decide whether Thompson's case became moot when his 1978 sentence expired.

We observe only that the collateral consequences saving the petitioner's claim in Carafas from

mootness do not seem to be implicated where, as here, the petitioner has been convicted of multiple

felonies. Also, we express no opinion as to whether the present petition deprives the district court

of jurisdiction in a parallel petition Thompson filed to attack his 1978 conviction.

We AFFIRM the judgment of the district court dismissing Thompson's habeas petition.