1 United States Court of Appeals,

Fifth Circuit.

No. 92-7396

Summary Calendar.

Harvey F. GARLOTTE, Petitioner-Appellant,

v.

Kirk FORDICE, Governor, Respondent-Appellee.

Aug. 19, 1994.

Appeal from the United States District Court for the Southern

District of Mississippi.

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

PER CURIAM:

Petitioner Harvey F. Garlotte ("Garlotte") brings a h abeas

corpus action pursuant to 28 U.S.C. § 2254, challenging a 1985

state conviction for possession of marijuana. The district court,

adopting the magistrate judge's Report and Recommendation,

dismissed the petition for failure to exhaust state remedies

without requiring the respondent to file an answer. We granted

Garlotte's requ est for a Certificate of Probable Cause, ordering

Respondent Kirk Fordice ("Fordice") to brief the issue whether the

district court prematurely dismissed Garlotte's petition without

requ iring an answer or conducting an evidentiary hearing.

Concluding that under recent United States Supreme Court precedent

Garlotte was not "in custody" for purposes of § 2254, we affirm the

district court's dismi ssal of the petition, but on the separate

ground of lack of jurisdiction pursuant to 28 U.S.C. § 2254.

FACTS AND PROCEDURAL HISTORY2

In 1985, Garlotte pleaded guilty to one cou nt of possession

with intent to deliver or sell one ounce or less of marijuana and

was sentenced to three year s imprisonment. On the same day he

pleaded guilty to two counts of murder and received two life

sentences, which the court ordered to run concurrently. The court

also ordered that the concurrent life sentences were to run

"consecutive, and after" the three year marijuana conviction.

Garlotte did not appeal his marijuana conviction, and his two state

post-conviction motions were denied. He is currently eligible for

parole consideration on March 1, 1996.

In 1989, Garlotte filed a federal petition for habeas corpus

relief challenging the 1985 marijuana conviction. Fordice filed a

motion to dismiss for failure to exhaust state habeas remedies, and

the magistrate judge recommended that the p etition be dismissed

with prejudice. The district court remanded the matter to the

magistrate for reconsideration.

On remand, the magistrate recommended dismissing the petition

without requiring Fordice to file an answer, concludi ng that

a lthough it was unclear whether Garlotte had exhausted his state

remedies, even if they were unexhausted the requirement should be

waived because exhaustion would be futile. After reviewing the

magistrate's Report and Recommendation, the district court adopted

it, dismissed the petition, and denied Garlotte's request for a

Certificate of Probable Cause.

DISCUSSION

For the first time on appeal, Fordice argues Garlott e's3

habeas petition should be dismissed for lack of subject matter

jurisdiction because he is not "in custody" within the meaning of

28 U.S.C. § 2254. A challenge to subject matter jurisdiction may

be raised for the first time on a ppeal because it may not be

waived. H

ensgens v. Deere & Co., 833 F.2d 1179 , 1180 (5th

Cir.1987), cert. denied, 493 U.S. 851, 110 S.Ct. 150, 107 L.Ed.2d

108 (1989). Therefore, we address the question of whether Garlotte

is "in custody" under the 1985 marijuana conviction.

Federal district courts lack subject matter jurisdiction to

entertain § 2254 actions if, at the time the petition is filed, the

petitioner is not "in custody" under the conviction or sentence

which the petition attacks. M aleng v. Cook, 490 U.S. 488, 491, 109

S.Ct. 1923, 1925, 104 L.Ed.2d 540 ( 1989); see also H endrix v.

Lynaugh, 888 F.2d 336 (5th Cir.1989). Fordice argues that under

Maleng, Garlotte is not "in custody" because his three year

sentence for the marijuana conviction was fully expired before he

filed his habeas petition with the district court. Specifically,

Fordice contends that according to Garlotte's records at the

Mississippi Department of Corrections, he was discharged from the

marijuana conviction on June 1, 1986. He did not file his petition

for habeas relief in federal court until 1989, after he was already

serving time for the two concurrent life sentences for murder.

Therefore, because the marijuana conviction he now attacks was not

used for enhancement purposes for the concurrent life sentences for

murder, and because the marijuana conviction is fully exp ired,

Garlotte is not "in custody" for purposes of § 2254.4

Garlot te does not challenge Fordice's contention that his

three year marijuana sentence has expired, but argues instead that

the Supreme Co urt's decision in P eyton v. Rowe, 391 U.S. 54, 88

S.Ct. 1549, 20 L.Ed.2d 426 (1968), holding that a prisoner serving

consecutive sentences is "in custody" under any one of the

sentences, controls this case. Garlotte further argues that there

exists a "positive and demonstrable" nexus between his current

c ustody under the murder sentences and the prior marijuan a

conviction such t hat his challenge meets the jurisdictional

requirem ents of § 2254. W illis v. Collins, 989 F.2d 187 (5th

Cir.1993), quoting Young v. Lynaugh, 821 F.2d 1 133, 1137 (5th

Cir.1987), cert. denied, 484 U.S. 986, 108 S.Ct. 503, 98 L.Ed.2d

501 (1 987), and c ert. denied, 484 U.S. 1071, 108 S.Ct. 1040, 98

L.Ed.2d 1004 (1988). Specifically, he contends that but for his

marijuana conviction, he would have been eligible for parole

consideration on June 5, 1995, instead of March 1, 1996.

This Court has held that a petitioner can challenge a fully

expired sentence if the expired sentence delayed the time for which

the petitioner could receive credit for time served on the current

sentence. C appetta v. Wainwright, 406 F.2d 1238, 1239 (5th Cir.),

cert. denied, 396 U.S. 846, 9 0 S.Ct. 55, 24 L.Ed.2d 96 (1969).

Since Cappetta, however, the Supreme Court stated in Maleng:

We have never held, however, that a habeas petitioner may be

"in custody" under a conviction when the sentence imposed for

that conviction has fully expired at the time the petition is

filed.

Maleng, 490 U.S. at 491, 109 S.Ct. at 1925 (emphasis in original).

Therefore, to the extent that the Supreme Court's decision in5

Maleng is in conflict with this Court's decision in Cappetta, we

now follow the rule established by Maleng.

In Peyton, the Supreme Court held that a petitioner who was

serving consecutive sentences imposed by the state court is "in

custody" under any one of those sentences. P eyton, 391 U.S. at 67,

88 S.Ct. at 1556. Unlike Garlotte, however, the petitioners in

Peyton were challenging a sentence they had not yet begun to serve.

Garlotte attempts only to challenge a sentence that is "fully

expired" under the definition established by the Supreme Court in

Maleng. Therefore, Garlotte's challenge to his "fully expired"

marijuana conviction is not controlled by the Supreme Court's

decision in Peyton because he is not attempting to challenge a

sentence he has not yet begun to serve.

As for Ga rlotte's contention that because his parole

consideration date has been delayed by the marijuana conviction a

nexus exists between the marijuan a conviction and the murder

conviction, we find that this argumen t too must fail. As the

Supreme Court stated in Maleng:

[O]nce the sen tence imposed for a conviction has completely

expired, the collateral consequences of that conviction are

not themselves sufficient to render an individual "in custody"

for the purposes of a habeas attack upon it.

Maleng, 490 U.S. at 492, 109 S.Ct. at 1926. Because Garlotte's

parole dela y merely constitutes a collateral consequence of his

marijuana convic tion, he has failed to allege a "positive and

demonstrable" nexus between the marijuana conviction and the murder

sentences h e is now serving in order to meet the requirements of

the Maleng exception established by this Court in Willis. Having6

found that Garlotte is not "in custody" for purposes of subject

matter jurisdiction, we decline to address the other issues he

raises in his petition. Accordingly, we AFFIRM the district

court's dismissal, but on the separate ground of the district

court's lack of jurisdiction pursuant to 28 U.S.C. § 2254.