Arnold v. Hoffe

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JAMES GUY ARNOLD, 
Petitioner-Appellant,
v.
 No. 01-6863
C. MARK HOFFE; ATTORNEY
GENERAL OF WEST VIRGINIA,
Respondents-Appellees.

Appeal from the United States District Court
for the Northern District of West Virginia, at Martinsburg.
W. Craig Broadwater, District Judge.
(CA-01-11-3)
Submitted: October 31, 2001
Decided: November 20, 2001
Before WILKINS, MICHAEL, and GREGORY, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
COUNSEL
James Guy Arnold, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 ARNOLD v. HOFFE
OPINION
PER CURIAM:
James Guy Arnold appeals the district court’s order denying relief
on his petition for habeas relief or for a writ of error coram nobis pur-
suant to 28 U.S.C. §§ 1651, 2241 (1994), which the district court con-
strued as a petition pursuant to 28 U.S.C.A. § 2254 (West 1994 &
Supp. 2001).1 We remand for further factual findings.
Pursuant to 28 U.S.C. § 2254(a), federal courts have jurisdiction to
entertain an application for habeas relief only if a petitioner is "in cus-
tody" in violation of the laws, treaties, or Constitution of the United
States. The custody requirement must be established at the time peti-
tioner files his petition. Carafas v. LaVallee, 391 U.S. 234, 238
(1968). A review of the record shows Arnold was no longer in prison
pursuant to his state conviction at the time he filed his § 2254 petition.
However, it is unclear from the record before us whether he was serv-
ing a probationary sentence or was on parole at the time of filing. See
Jones v. Cunningham, 371 U.S. 236, 242-43 (1963); Tinder v. Paula,
725 F.2d 801, 803 (1st Cir. 1984). Thus, the record before us is insuf-
ficient to determine whether the district court had jurisdiction to con-
sider Arnold’s petition. Further, we find the district court incorrectly
dismissed Arnold’s petition based on the concurrent sentencing doc-
trine, as the record indicates Arnold did not receive concurrent sen-
tences and Arnold alleged collateral consequences continue as a result
of his expired state sentence.2 See United States v. Walker, 677 F.2d
1Arnold contends the district court erred in so construing his petition.
However, Arnold’s petition is properly construed as one under § 2254
because it is based on his custody pursuant to the judgment of a state
court and he alleges his conviction is in violation of the Constitution. See
28 U.S.C.A. § 2254(a) (West 1994 & Supp. 2001). Moreover, a writ of
error coram nobis is not available in federal court to challenge a state
criminal judgment. Sinclair v. Louisiana, 679 F.2d 513, 514-15 (5th Cir.
1982) (finding no jurisdiction to issue writ where federal court did not
impose sentence).
2
Moreover, we note collateral consequences are presumed to flow
from a wrongful conviction. See Spencer v. Kemna, 523 U.S. 1, 7-8
(1998).
ARNOLD v. HOFFE 3
1014, 1015 (4th Cir. 1982); United States v. Hudacek, 24 F.3d 143,
145 n.2 (11th Cir. 1994). Accordingly, we grant a certificate of
appealability, vacate the district court’s dismissal order, and remand
for further factual findings. Moreover, we direct the court to consider
the merits of Arnold’s petition if it finds he was "in custody" within
the meaning of the statute.
Arnold’s motions for appointment of counsel, to adopt the record
in Arnold v. America Online, 01-1559, and for a certificate of proba-
ble cause, are denied. His motion to proceed in forma pauperis on
appeal is granted. We dispense with oral argument because the facts
and legal contentions are adequately presented in the material before
the court and argument would not aid the decisional process.
VACATED AND REMANDED