Whorf v. Commissioner ( 1992 )

USCA1 Opinion

          June 23, 1992         [NOT FOR PUBLICATION]










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          No. 92-1479

            


                                    KARL J. WHORF,

                                Plaintiff, Appellant,

                                          v.

                       COMMISSIONER, DEPARTMENT OF CORRECTIONS,
                                MASSACHUSETTS, ET AL.,

                                Defendants, Appellees.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. A. David Mazzone, U.S. District Judge]
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                                        Before

                                 Breyer, Chief Judge,
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                           Campbell, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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                                 ___________________

               Karl  J.  Whorf pro  se  on Application  for  Certificate of
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          Probable Cause.



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                 Per Curiam.    The district court dismissed petitioner's
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            habeas  corpus petition on the ground that petitioner was not

            "in  custody" and  denied  a certificate  of probable  cause.

            Petitioner  now  seeks a  certificate  of  probable cause  to

            appeal the dismissal.  

                Since   petitioner's   application  challenged   a  fully

            discharged  sentence, we  agree with  the district  court and

            deny the certificate.  

                 The relevant facts are as follows:

                 In  November, 1978,  petitioner  received a  twenty year

            sentence to  M.C.I., Concord, for armed  robbery while masked

            (the "Concord  sentence").  He  was granted parole  from this

            Concord sentence  in January,  1980.   In  December, 1980,  a

            parole violation warrant issued.  

                 In  February,  1981, petitioner  was indicted  for three

            armed  robberies and  assault with  a dangerous  weapon.   He

            pleaded  guilty and, as entered  in the mittimus  on April 2,

            1981,  was sentenced  to serve  three concurrent five  to ten

            year terms at M.C.I., Walpole (now  Cedar Junction) "from and

            after sentences  now serving,"  (the "Walpole  sentences"). A

            fourth sentence was  suspended.  At the  time of petitioner's

            commitment to M.C.I.,  Walpole, the parole violation  warrant

            from  the  Concord  sentence  was lodged  against  him  as  a

            detainer. 





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                 On December 15, 1988,  petitioner moved to "correct" his

            Walpole  sentences  with  the  objective  of eliminating  the

            continuing vitality  of the  Concord sentence.   Judge Abrams

            (who  had originally  imposed the Walpole  sentences) ordered

            the   mittimus    "corrected"   to   read,   "five   to   ten

            years...forthwith from  the sentence imposed on  November 30,

            1978 to M.C.I., Concord, nunc pro tunc as of April 2, 1981.".

            The judge's  "corrected sentences" were intended  to have the

            effect of  extinguishing the time  remaining to be  served on

            the petitioner's previous Concord conviction.  

                 The  state  appealed.  The  Massachusetts  Appeals Court

            reversed and ordered the original mittimus reinstated, on the

            grounds  that Mass.  R. Crim. P.  30(a) could not  be used to

            correct a  misunderstanding by the judge  of the consequences

            of  his action.  Judge  Abrams once again  ordered the record

            corrected, now under Mass. R. Crim.  P. 42.  The state  again

            sought review,  now  by writ  of  certiorari to  the  Supreme

            Judicial Court.   That  court vacated the  second "corrected"

            sentence,  again reinstating  the original  mittimus,  on the

            grounds  that under  Massachusetts law  the judge's  nunc pro

            tunc correction was unlawful in that "a forthwith sentence to

            state   prison   could  not   terminate  or   extinguish  the

            defendant's previously imposed sentence...".

                 In  the  meantime,  the  Walpole  sentences  were  fully

            discharged on  March 2,  1989.   The instant application  for



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            habeas corpus is directed at these Walpole sentences, raising

            a  variety of challenges to the underlying conviction and the

            validity of petitioner's plea to the original indictments.

                 Under  Maleng v.  Cook, 490 U.S.  488 (1989),  "once the
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            sentence 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".  Id. at 492.      
                                                   __

                 Accordingly, petitioner's application for  a certificate

            of  probable  cause  to appeal  is  denied.   Nothing  herein

            prevents petitioner  from filing  a new petition  directed at

            the Concord sentence,  or any other sentence,  provided he is

            still "in custody" under it. 

                 So ordered.
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