Carthen v. Workman

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 1 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
PHILLIP B. CARTHEN,
Petitioner-Appellant, No. 04-6205
v. Western District of Oklahoma
RANDELL WORKMAN, (D.C. No. 03-CV-1721-R)
Respondent-Appellee.
ORDER *
Before EBEL , MURPHY , and McCONNELL , Circuit Judges.
Phillip B. Carthen, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) that would allow him to appeal from the district court’s order
which denied his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A). Because we conclude that Mr. Carthen has failed to make “a
substantial showing of the denial of a constitutional right,” we deny his request
for a COA, and we dismiss the appeal. 28 U.S.C. § 2253(c)(2).
Mr. Carthen’s habeas petition attacks an expired 1998 conviction in
Oklahoma state court that he contends was used to enhance a current sentence on
*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
unrelated charges. Mr. Carthen pled guilty in 1998 to a single count of assault
and battery on a police officer and was sentenced to a one-year term of
imprisonment on September 11, 1998. Mr. Carthen was represented by court-
appointed counsel at his preliminary hearing and at sentencing. Mr. Carthen did
not file a direct appeal, but some time later he filed a motion for post-conviction
relief in Oklahoma state court, which was denied on October 2, 2002. Mr.
Carthen’s appeal of this denial was dismissed by the Oklahoma Court of Criminal
Appeals on December 17, 2002 for failure to provide an adequate record. Mr.
Carthen now claims that the offense underlying his 1998 conviction was a
misdemeanor under state law, but was later characterized as a felony for the
purposes of enhancing his current sentence. Mr. Carthen maintains that this
characterization violated his right to equal protection as well as the provisions of
Article 1, § 9, clause 3 of the United States Constitution.
The dismissal of a petition for habeas relief under 28 U.S.C. § 2254 may be
appealed only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order
to make such a showing, a petitioner must demonstrate that “reasonable jurists
could debate whether . . . the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
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proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal
quotations omitted). The district court did not reach the merits of Mr. Carthen’s
petition, adopting instead the magistrate court’s recommendation to dismiss the
petition for want of jurisdiction. When a district court disposes of a habeas
petition without reaching the merits, a COA will not issue unless the petitioner
states an arguable constitutional claim and makes a showing that reasonable
jurists could debate the propriety of the means by which the district court
disposed of the petition. Id. In light of Supreme Court precedent requiring in
almost every case the dismissal of habeas petitions seeking to attack expired
convictions used to enhance subsequent sentences, Mr. Carthen cannot
demonstrate that reasonable jurists would debate the propriety of disposing of his
petition without reaching its merits.
A federal district court may entertain a petition for habeas relief from a
person “in custody pursuant to the judgment of a State court only on the ground
that he is in custody in violation of the Constitution or laws . . . of the United
States.” 28 U.S.C. § 2254(a). Because the petition attacks the expired 1998
conviction, the magistrate court concluded that Mr. Carthen was not “in custody”
as required by § 2254. In the magistrate judge’s formulation, a federal court lacks
jurisdiction to hear a habeas petition under § 2254 when the sentence being
attacked has expired: “As a prerequisite to this Court’s assumption of jurisdiction
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over any habeas corpus claim, it is necessary that the petitioner be ‘in custody’
under the judgment he attacks.” Report and Recommendation at 2. The district
court agreed, finding that it had no jurisdiction to hear a § 2254 petition attacking
an expired conviction. Order at 2. In dismissing the petition, both magistrate
court and district court reached the correct result. They did so, however, through
an inaccurate statement of the law regarding federal courts’ jurisdiction to hear
petitions under § 2254.
While federal courts do not ordinarily have jurisdiction under § 2254 to
entertain attacks on expired sentences, they do have jurisdiction when an expired
sentence has been used to enhance a sentence currently being served. Maleng v.
Cook , 490 U.S. 488, 493–94 (1989). Under these circumstances, the petitioner’s
current incarceration satisfies the “in custody” requirement, and jurisdiction
attaches even when the petitioner has identified the expired conviction as the one
under attack. If such a petition is “construed with the deference to which pro se
litigants are entitled, [it] can be read as asserting a challenge to the [current]
sentences, as enhanced by the allegedly invalid prior conviction, . . . satisfy[ing]
the ‘in custody’ requirement for federal habeas jurisdiction.” Id. (citations
omitted). Like the petitions in Maleng and Lackawanna County District Attorney
v. Coss, 532 U.S. 394 (2001), Mr. Carthen’s petition can be read as an attack on
the sentence he currently serves, satisfying the “in custody” requirement of §
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2254. The magistrate and district courts therefore erred in determining that they
lacked jurisdiction to consider the petition. 1
That a court has jurisdiction over a claim is no guarantee that the court may
properly reach its merits, however. Subject to two narrow exceptions, a petitioner
may not use § 2254 to make a collateral attack on an expired sentence used to
augment a current one:
[O]nce a state conviction is no longer open to direct or collateral
attack in its own right because the defendant failed to pursue those
remedies while they were available (or because the defendant did so
unsuccessfully), the conviction may be regarded as conclusively
valid. . . . If that conviction is later used to enhance a criminal
sentence, the defendant generally may not challenge the enhanced
sentence through a petition under § 2254 on the ground that the prior
conviction was unconstitutionally obtained.
Coss, 532 U.S. at 403–04 (citation omitted).
The only exceptions to this general rule are claims that the expired
conviction was obtained (1) without the assistance of appointed counsel in
violation of the Sixth Amendment, or (2) under circumstances in which a
1
The district court quoted Broomes v. Ashcroft, 358 F.3d 1251 (10th Cir.
2004), in support of its conclusion that it lacked jurisdiction to entertain the
petition. While portions of Broomes could be read to support the district court’s
conclusion, the better reading of Broomes is that its holding rests not on the
statute’s “in custody” language, but on its requirement that a petitioner be in
custody “pursuant to the judgment of a State court,” a requirement not satisfied on
the facts of Broomes. See id. at 1254 (“[Petitioner] is not currently ‘in custody
pursuant to a judgment of a State court,’ but rather is in federal custody awaiting
a final removal determination by the Immigration and Naturalization Service.”)
(quoting 28 U.S.C. § 2254(a)).
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defendant “can[not] be faulted for failing to obtain timely review of a
constitutional claim” because no avenue of review was available. Id. at 404–05.
Mr. Carthen attempts to bring his claim within the second exception to the rule in
Coss by arguing that he did not know how to appeal his conviction and therefore
failed to pursue his claims on direct appeal through no fault of his own. Mr.
Carthen maintains that his lawyer failed to explain to him the procedures by
which his conviction could be appealed and that the sentencing court and his
attorney both failed to advise him that he had meritorious grounds for an appeal
or to contact him after his sentencing hearing to see whether he wished to appeal.
We do not require sentencing courts and criminal defense attorneys,
following a guilty plea, to protect and pursue defendants’ right to appeal with the
tender solicitude for which Mr. Carthen contends. Indeed, attorneys do not have
an absolute duty even to inform a defendant who has pled guilty of his right to
appeal. Laycock v. New Mexico , 880 F.2d 1184, 1187–88 (10th Cir. 1989).
Sentencing courts do not have a duty to advise defendants of the right to appeal
following a plea of guilty, still less a duty to contact defendants after sentencing
to offer legal advice regarding the desirability of or proper procedures for an
appeal. Crow v. United States , 397 F.2d 284, 285 (10th Cir. 1968). Moreover,
Mr. Carthen admits that the sentencing court did in fact inform him of his right to
appeal at his sentencing hearing. By his own account, he knew of his right to
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appeal his conviction and failed to pursue it. “[A] defendant properly bears the
consequences of . . . forgoing otherwise available review of a conviction . . . .”
Coss , 532 U.S. at 405. Because Mr. Carthen has failed to bring his case within
the Coss exceptions, it falls instead within the general rule precluding the use of §
2254 to attack expired convictions. 2
Mr. Carthen also appeals the denial of his motion to proceed in forma
pauperis . “In order to succeed on [a] motion [to proceed in forma pauperis ], an
appellant must show a financial inability to pay the required filing fees and the
existence of a reasoned, nonfrivolous argument on the law and facts in support of
the issues raised on appeal.” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th
2
In disposing of Mr. Carthen’s request for a COA, we do not reach the
substance of his claim but do note in passing that, beyond his bare assertions, he
has offered no evidence that the expired conviction he attacks was in fact used to
augment his current sentence. While Mr. Carthen stoutly maintains that his
current sentence was increased in length from one year to twenty due to the single
expired conviction that is the subject of his habeas petition, the record includes a
letter from the Oklahoma Indigent Defense System observing that Mr. Carthen
had four prior felony convictions in addition to the expired conviction. The letter
opines that all four of the other convictions could be used for purposes of
enhancement. While we have not had occasion to consider this matter before, it is
reasonable to conclude, as several of our sister circuits have, that a petitioner who
would attack an expired sentence because it has enhanced a current sentence must
make some showing that the first sentence actually had the effect of augmenting
the second. See Van Zant v. Fla. Parole Comm’n, 104 F.3d 325, 327–28 (11th
Cir. 1997); Lowery v. Young, 887 F.2d 1309, 1312 (7th Cir. 1989); Young v.
Lynaugh, 821 F.2d 1133, 1137 (5th Cir. 1987).
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Cir. 1991). Because Mr. Carthen cannot make a reasoned nonfrivolous argument
in support of the issues he raises on appeal, his request to proceed in forma
pauperis must also be denied.
Accordingly, we DENY Phillip B. Carthen’s request for a COA and
DISMISS this appeal. Petitioner’s motion to proceed in forma pauperis is also
DENIED .
Entered for the Court,
Patrick Fisher, Clerk
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