Lee v. West Virginia ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 01-7764
PAUL A. LEE,
Petitioner - Appellant,
versus
STATE OF WEST VIRGINIA, by the Attorney
General of the State of West Virginia,
Respondent - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling. Frederick P. Stamp, Jr.,
District Judge. (CA-00-143-5)
Submitted: February 27, 2002 Decided: March 19, 2002
Before WIDENER, NIEMEYER, and TRAXLER, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Paul A. Lee, Appellant Pro Se. Dawn Ellen Warfield, OFFICE OR THE
ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Paul Lee filed a petition for habeas corpus seeking, in
effect, to attack a 1976 West Virginia state conviction for armed
robbery because that conviction was used to enhance a 1991 federal
sentence for drug trafficking. See 28 U.S.C.A. § 2254 (West 1994
& Supp. 2001). The district court denied relief based on its
conclusion that Lee was not “in custody” for purposes of the state
conviction. Lee appeals.
Regardless of whether Lee is able to meet the in custody
requirement for bringing a habeas petition, a prisoner may not
(except in narrow circumstances not applicable in this case)
collaterally attack an expired conviction that has been used to
enhance a sentence for which the prisoner is presently in custody.
Daniels v. United States, 532 U.S. 374, 382 (2001); Lackawanna
County Dist. Attorney v. Cross, 532 U.S. 394, 403-04 (2001). We
therefore deny a certificate of appealability and dismiss the
appeal. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before us and
argument would not aid the decisional process.
DISMISSED
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