OCTOBER TERM, 1994
Syllabus
GARLOTTE
v. FORDICE, GOVERNOR OF MISSISSIPPI
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH
CIRCUIT
No. 94-6790. Argued April 24, 1995-Decided May 30,1995
A Mississippi trial court ordered that petitioner Garlotte
serve, consecutively, a 3-year prison sentence on a marijuana
conviction, followed by concurrent life sentences on two murder
convictions. State law required Garlotte to serve at least 10
months on the first sentence and 10 years on the concurrent
sentences. Garlotte unsuccessfully sought state postconviction
collateral relief on the marijuana conviction. By the time those
proceedings ended, he had completed the period of incarceration set
for the marijuana offense, and had commenced serving the life
sentences. The Federal District Court denied his subsequent federal
habeas petition on the merits, but the Court of Appeals dismissed
the petition for want of jurisdiction. The Court of Appeals adopted
the State's position that Garlotte had already served out the
prison time imposed for the marijuana conviction and, therefore,
was no longer "in custody" under the conviction within the meaning
of the federal habeas statute, 28 U. S. C. § 2254(a). The court
rejected Garlotte's argument that he remained "in custody" because
the marijuana conviction continued to postpone the date on which he
would be eligible for parole.
Held: Garlotte was "in custody" under his marijuana
conviction when he filed his federal habeas petition. Pp.
43-47.
(a) In
Peyton v.
Rowe, 391 U. S. 54, this Court
allowed two prisoners incarcerated under consecutive sentences to
apply for federal habeas relief from sentences they had not yet
begun to serve. Viewing consecutive sentences in the aggregate, the
Court held that a prisoner serving consecutive sentences is "in
custody" under anyone of them for purposes of the habeas statute. A
different construction of the statutory term "in custody" will not
be adopted here simply because the sentence imposed under the
challenged conviction lies in the past rather than in the future.
Maleng v.
Cook, 490 U. S. 488-in which
the Court held that a habeas petitioner could not challenge a
conviction after the sentence imposed for it had fully expired-does
not control this case, for the habeas petitioner in
Maleng,
unlike Garlotte, was not serving consecutive sentences. Pp.
43-46.
(b) Allowing a habeas attack on a sentence nominally completed
is unlikely to encourage delay in the assertion of habeas
challenges. A
40
prisoner naturally prefers release sooner to release later, and
delay is apt to disadvantage a petitioner-who has the burden of
proof-more than the State. Moreover, under Habeas Corpus Rule 9(a),
a district court may dismiss a habeas petition if the State has
been prejudiced in its ability to respond because of inexcusable
delay in the petition's filing. Pp.46-47.
29 F.3d
216, reversed and remanded.
GINSBURG, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, SCALIA, KENNEDY, SOUTER, and BREYER, JJ.,
joined. THOMAS, J., filed a dissenting opinion, in which REHNQUIST,
C. J., joined,
post, p. 47.
Brian D. Boyle, by appointment of the Court, 513 U. S.
1125, argued the cause for petitioner. With him on the briefs were
James R. Asperger and
Matthew B. Pachman.
Marvin L. White, Jr., Assistant Attorney General of
Mississippi, argued the cause for respondent. With him on the brief
were
Mike Moore, Attorney General, and
Jo Anne M.
McLeod and
John L. Gadow, Special Assistant Attorneys
General. *
JUSTICE GINSBURG delivered the opinion of the Court.
To petition a federal court for habeas corpus relief from a
state-court conviction, the applicant must be "in custody in
violation of the Constitution or laws or treaties of the United
States." 28 U. S. C. § 2254(a); see also 28 U. S. C. § 2241(c)(3).
In
Peyton v.
Rowe, 391 U. S. 54 (1968), we
held that the governing federal prescription permits prisoners
incarcerated under consecutive state-court sentences to apply for
federal habeas relief from sentences they had not yet begun to
serve. We said in
Peyton that, for purposes of habeas
relief, consecutive sentences should be treated as a continuous
series; a prisoner is "in custody in violation of the
*
Harold J.
Krent filed a brief for the
Post-Conviction Assistance Project of the University of Virginia et
al. as
amici curiae urging reversal.
Kent S.
Scheidegger filed a brief for the Criminal
Justice Legal Foundation as
amicus curiae urging
affirmance.
41
Constitution," we explained, "if any consecutive sentence [the
prisoner is] scheduled to serve was imposed as the result of a
deprivation of constitutional rights."
Id., at 64-65.
The case before us is appropriately described as
Peyton's
complement, or
Peyton in reverse. Like the habeas
petitioners in
Peyton, petitioner Harvey Garlotte is
incarcerated under consecutive sentences. Unlike the
Peyton
petitioners, however, Garlotte does not challenge a conviction
underlying a sentence yet to be served. Instead, Garlotte seeks to
attack a conviction underlying the sentence that ran first in a
consecutive series, a sentence already served, but one that
nonetheless persists to postpone Garlotte's eligibility for parole.
Following
Peyton, we do not disaggregate Garlotte's
sentences, but comprehend them as composing a continuous stream. We
therefore hold that Garlotte remains "in custody" under all of his
sentences until all are served, and now may attack the conviction
underlying the sentence scheduled to run first in the series.
I
On September 16, 1985, at a plea hearing held in a Mississippi
trial court, Harvey Garlotte entered simultaneous guilty pleas to
one count of possession with intent to distribute marijuana and two
counts of murder. Pursuant to a plea agreement, the State
recommended that Garlotte be sentenced to a prison term of three
years on the marijuana count, to run consecutively with two
concurrent life sentences on the murder counts. App. 43. State law
required Garlotte to serve at least ten months on the marijuana
count, Miss. Code Ann. §47-7-3(1)(c)(ii) (Supp. 1994), and at least
ten years on the concurrent life sentences. §47-7-3(1).
At the plea hearing, the trial judge inquired whether the State
wanted Garlotte to serve the life sentences before the three-year
sentence: "[A] three year sentence [on the marijuana possession
count] to run consecutive to thee] two life
42
sentences?" the judge asked. The prosecutor expressed
indifference about the order in which the sentences would run:
"Either that way, your Honor or allow the three years to run
first. In other words, we're just talking about a total of three
years and then life or life and then three years." App. 43. The
judge next asked Garlotte's counsel about his understanding of the
State's recommendation. Defense counsel replied, without
elaboration: "[I]t's my understanding that the possession case is
to run first and then the two life sentences."
Id., at 44.
The court saw "no reason not to go along with the recommendation of
the State."
Id., at 50. Without further explanation, the
court imposed the sentences in this order: the three-year sentence
first, then, consecutively, the concurrent life sentences.
Ibid.
Garlotte wrote to the trial court seven months after the
September 16, 1985 hearing, asking for permission to withdraw his
guilty plea on the marijuana count. The court's reply notified
Garlotte of the Mississippi statute under which he could pursue
postconviction collateral relief.
Id., at 51. Garlotte
unsuccessfully moved for such relief. Nearly two years after the
denial of Garlotte's motion, the Mississippi Supreme Court rejected
his appeal.
Garlotte v.
State, 530 So. 2d 693 (1988).
On January 18, 1989, the Mississippi Supreme Court denied further
postconviction motions filed by Garlotte. By this time, Garlotte
had completed the period of incarceration set for the marijuana
offense, and had commenced serving the life sentences.
On October 6, 1989, Garlotte filed a habeas corpus petition in
the United States District Court for the Southern District of
Mississippi, naming as respondent Kirk Fordice, the Governor of
Mississippi.1 Adopting the recommendation of a
1 Garlotte asserted that he was entitled to relief because his
guilty plea was not knowing, intelligent, and voluntary, he did not
receive effective assistance of trial counsel, he was subjected to
double jeopardy, and his sentence was unusual and disproportionate.
App. 6.
43
Federal Magistrate Judge, the District Court denied Garlotte's
petition on the merits. App. 18.
Before the United States Court of Appeals for the Fifth Circuit,
the State argued for the first time that the District Court lacked
jurisdiction over Garlotte's petition.
29 F.3d
216, 217 (1994). The State asserted that Garlotte, prior to the
District Court filing, had already served out the prison time
imposed for the marijuana conviction; therefore, the State
maintained, Garlotte was no longer "in custody" under that
conviction within the meaning of the federal habeas statute.
Ibid. Garlotte countered that he remained "in custody" until
all sentences were served, emphasizing that the marijuana
conviction continued to postpone the date on which he would be
eligible for parole.
Id., at 218.
Adopting the State's position, the Fifth Circuit dismissed
Garlotte's habeas petition for want of jurisdiction.
Ibid.
The Courts of Appeals have divided over the question whether a
person incarcerated under consecutive sentences remains "in
custody" under a sentence that (1) has been completed in terms of
prison time served, but (2) continues to postpone the prisoner's
date of potential release.2 We granted certiorari to resolve this
conflict, 513 U. S. 1123 (1995), and now reverse.3
II
The federal habeas statute authorizes United States district
courts to entertain petitions for habeas relief from state-court
judgments only when the petitioner is "in custody in violation of
the Constitution or laws or treaties of
2 Compare
Fawcett v.
Bablitch, 962 F.2d
617, 618
(CA7 1992) ("in custody");
Bernard v.
Garraghty, 934 F.2d
52, 55
(CA4 1991) (same); and
Fox v.
Kelso, 911 F.2d
563, 568 (CAll 1990) (same), with
Allen v.
Dowd,
964
3 Garlotte, who proceeded
pro se in the courts below,
filed along with his petition for certiorari a motion for
appointment of counsel. After we granted certiorari, we appointed
Brian D. Boyle, of Washington, D. C., to represent Garlotte. 513 U.
S. 1125 (1995).
44
the United States." 28 U. S. C. § 2254(a); see also 28 U. S. C.
§ 2241(c)(3). In Peyton v. Rowe,
391 U. S. 54 (1968), we
held that the statute authorized the exercise of habeas
jurisdiction over the petitions of two State of Virginia prisoners,
Robert Rowe and Clyde Thacker. Rowe and Thacker were incarcerated
under consecutive sentences; both sought to challenge sentences
slated to run in the future. Virginia, relying on
McNally v.
Hill, 293 U.
S. 131 (1934), argued that the habeas petitions were premature.
Overruling
McNally, we explained:
"[I]n common understanding 'custody' comprehends respondents'
status for the entire duration of their imprisonment. Practically
speaking, Rowe is in custody for 50 years, or for the aggregate of
his 30- and 20-year sentences. For purposes of parole eligibility,
under Virginia law he is incarcerated for 50 years. Nothing on the
face of § 2241 militates against an interpretation which views Rowe
and Thacker as being 'in custody' under the aggregate of the
consecutive sentences imposed on them. Under that interpretation,
they are 'in custody in violation of the Constitution' if any
consecutive sentence they are scheduled to serve was imposed as the
result of a deprivation of constitutional rights." 391 U. S., at
64-65 (citations omitted).
The habeas petitioners in Peyton sought to present challenges
that, if successful, would advance their release dates. That was
enough, we concluded, to permit them to invoke the Great Writ.
Id., at 66-67.
Had the Mississippi trial court ordered that Garlotte's life
sentences run before his marijuana sentence-an option about which
the prosecutor expressed indifference-Peyton unquestionably would
have instructed the District Court to entertain Garlotte's present
habeas petition. Because the marijuana term came first, and
Garlotte filed his habeas peti-
45
tion (following state-court proceedings) after prison time had
run on the marijuana sentence, Mississippi urges that Ma
leng
v.
Cook, 490
U. S. 488 (1989)
(per curiam), rather than
Peyton, controls.
The question presented in
Maleng was "whether a habeas
petitioner remains 'in custody' under a conviction after the
sentence imposed for it has fully expired, merely because of the
possibility that the prior conviction will be used to enhance the
sentences imposed for any subsequent crimes of which he is
convicted." 490 U. S., at 492. We held that the potential use of a
conviction to enhance a sentence for subsequent offenses did not
suffice to render a person "in custody" within the meaning of the
habeas statute.
Ibid.
Maleng recognized that we had "very liberally construed
the 'in custody' requirement for purposes of federal habeas," but
stressed that the Court had "never extended it to the situation
where a habeas petitioner suffers no present restraint from a
conviction."
Ibid. "[A]lmost all States have habitual
offender statutes, and many States provide ... for specific
enhancement of subsequent sentences on the basis of prior
convictions,"
ibid.; hence, the construction of "in custody"
urged by the habeas petitioner in
Maleng would have left
nearly all convictions perpetually open to collateral attack. The
Maleng petitioner's interpretation, we therefore commented,
"would read the 'in custody' requirement out of the statute."
Ibid.4
Unlike the habeas petitioner in
Maleng, Garlotte is
serving consecutive sentences. In
Peyton, we held that "a
prisoner serving consecutive sentences is 'in custody' under any
one of them" for purposes of the habeas statute. 391 U. S.,
4 We left open the possibility, however, that the conviction
underlying the expired sentence might be subject to challenge in a
collateral attack upon the subsequent sentence that the expired
sentence was used to enhance.
Maleng, 490 U. S., at 494.
46
at 67. Having construed the statutory term "in custody" to
require that consecutive sentences be viewed in the aggregate, we
will not now adopt a different construction simply because the
sentence imposed under the challenged conviction lies in the past
rather than in the future.5
Mississippi urges, as a prime reason for its construction of the
"in custody" requirement, that allowing a habeas attack on a
sentence nominally completed would "encourage and reward delay in
the assertion of habeas challenges." Brief for Respondent 28. As
Mississippi observes, in
Peyton we rejected the prematurity
rule of
McNally in part because of "the harshness of a rule
which may delay determination of federal claims for decades."
Peyton, 391 U. S., at 61. Mississippi argues that Garlotte's
reading of the words "in custody" would undermine the expeditious
adjudication rationale of
Peyton. Brief for Respondent 6-7,
27-28.
Our holding today, however, is unlikely to encourage delay.
A prisoner naturally prefers release sooner to release later.
Further, because the habeas petitioner generally bears the burden
of proof, delay is apt to disadvantage the petitioner more than the
State. Nothing in this record, we note, suggests that Garlotte has
been dilatory in challenging his marijuana conviction. Finally,
under Habeas Corpus Rule 9(a), a district court may dismiss a
habeas petition if the State
5 That Mississippi itself views consecutive sentences in the
aggregate for various penological purposes reveals the difficulties
courts and prisoners would face trying to determine when one
sentence ends and a consecutive sentence begins. For example,
Mississippi aggregates consecutive sentences for the purpose of
determining parole eligibility, see Miss. Code Ann. §47-7-3(1)
(Supp. 1994) ("Every prisoner ... who has served not less than
one-fourth (1/4) of
the total of such term or terms for
which such prisoner was sentenced ... may be released on parole as
hereinafter provided .... ") (emphasis added), and for the purpose
of determining commutation of sentences for meritorious earned-time
credit. See Miss. Code Ann. §47-5-139(3) (1981) ("An offender under
two (2) or more consecutive sentences shall be allowed commutation
based upon
the total term of the sentences.") (emphasis
added).
47
"has been prejudiced in its ability to respond to the petition
by [inexcusable] delay in its filing."
***
Under
Peyton, we view consecutive sentences in the
aggregate, not as discrete segments. Invalidation of Garlotte's
marijuana conviction would advance the date of his eligibility for
release from present incarceration. Garlotte's challenge, which
will shorten his term of incarceration if he proves
unconstitutionality, implicates the core purpose of habeas review.
We therefore hold that Garlotte was "in custody" under his
marijuana conviction when he filed his federal habeas petition.
Accordingly, the judgment of the Court of Appeals for the Fifth
Circuit is reversed, and the case is remanded for proceedings
consistent with this opinion.
It is so ordered.
JUSTICE THOMAS, with whom THE CHIEF JUSTICE joins,
dissenting.
The Court concludes that a habeas petitioner may assert that he
"is in custody in violation of the Constitution or laws or treaties
of the United States," 28 U. S. C. § 2254(a), even when the
petitioner admits that the conviction he wishes to challenge has
expired. Because this construction of the habeas statute is neither
required by our case law nor, more importantly, by the statute, I
dissent.
In holding that Garlotte was in custody for his expired
marijuana conviction, the Court relies heavily on
Peyton v.
Rowe, 391 U. S.
54 (1968). There, petitioners wished to challenge sentences
that they had not yet begun to serve, claiming that they were
nevertheless "in custody" under these sentences. Overruling
McNally v.
Hill, 293 U. S. 131 (1934), we
held that such challenges could proceed. Practical considerations
drove us to adopt a rule permitting early challenges to
convictions. Allowing challenges to sentences that
48
had yet to commence might prevent stale claims from being
brought years after the crime and trial.
Peyton, supra, at
62-63. Recognizing that the first reason for finding the
petitioners in
Peyton "in custody" is not present here (and
indeed may cut against the majority's conclusion), the Court relies
on the second ground, namely, that a prisoner serving time under
consecutive sentences "is 'in custody' under any one of them" for
purposes of § 2241(c)(3).
Ante, at 45 (some internal
quotation marks omitted) (quoting 391 U. S., at 67).1
In my view,
Peyton ought to be construed as limited to
situations in which a habeas petitioner challenges a yet unexpired
sentence. This would satisfy
Peyton's policy concerns by
permitting challenges to unserved sentences at an earlier time.
More importantly, this interpretation would also make sense of the
Court's proper insistence in Maleng v.
Cook, 490 U. S. 488 (1989),
that the habeas statute does not permit prisoners to challenge
expired convictions. See id., at 490-491 ("We have interpreted the
statutory language as requiring that the habeas petitioner be 'in
custody' under the conviction or sentence under attack at the time
his petition is filed"). The majority, however, relies upon broad
language in one opinion to ignore language in another.2 Given
1 The Court argues that because Mississippi "views consecutive
sentences in the aggregate for various penological purposes," that
fact somehow "reveals the difficulties courts and prisoners would
face trying to determine when one sentence ends and a consecutive
sentence begins."
Ante, at 46, n. 5. We face many
difficulties in interpreting statutes. Those difficulties should
not lead us to conclude that petitioner was "in custody" any more
than they should lead us to decide that he was not "in
custody."
2 I recognize that
Peyton's concluding paragraph
enunciated a broad "hold[ing]." 391 U. S., at 67. Other language in
the opinion suggests a narrower holding, however. See id., at 64-65
(prisoners are in custody "if any consecutive sentence they
are
scheduled to serve was imposed as the result of a deprivation
of constitutional rights") (emphasis added).
Maleng, itself,
described
Peyton's holding as permitting a prisoner "who was
serving two consecutive sentences imposed ... [to] challenge the
second sentence
which he had not yet begun to serve." 490 U.
S., at 493 (emphasis added).
49
the statute's text and the oddity of asserting that Garlotte is
still serving time under the expired marijuana conviction, I would
read
Peyton narrowly. Accordingly, I dissent.
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