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    This order denies Phillip Carthen's request for a certificate of appealability to appeal the district court's denial of his habeas corpus petition under 28 U.S.C. § 2254. While the district court and magistrate court incorrectly determined they lacked jurisdiction over the petition, the appeals court finds that Carthen is generally prohibited from using § 2254 to collaterally attack an expired conviction that was used to enhance a current sentence, with narrow exceptions that do not apply in this case. Therefore, Carthen has failed to make a substantial showing of the denial of a constitutional right and his request for a COA is denied. His motion to proceed in forma pauperis is also denied for failure to show a nonfrivolous

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    Filed: 2005-02-01 Precedential Status: Non-Precedential Docket: 04-6205

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    This order denies Phillip Carthen's request for a certificate of appealability to appeal the district court's denial of his habeas corpus petition under 28 U.S.C. § 2254. While the district court and magistrate court incorrectly determined they lacked jurisdiction over the petition, the appeals court finds that Carthen is generally prohibited from using § 2254 to collaterally attack an expired conviction that was used to enhance a current sentence, with narrow exceptions that do not apply in this case. Therefore, Carthen has failed to make a substantial showing of the denial of a constitutional right and his request for a COA is denied. His motion to proceed in forma pauperis is also denied for failure to show a nonfrivolous

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    26 views8 pages

    Carthen v. Workman, 10th Cir. (2005)

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    This order denies Phillip Carthen's request for a certificate of appealability to appeal the district court's denial of his habeas corpus petition under 28 U.S.C. § 2254. While the district court and magistrate court incorrectly determined they lacked jurisdiction over the petition, the appeals court finds that Carthen is generally prohibited from using § 2254 to collaterally attack an expired conviction that was used to enhance a current sentence, with narrow exceptions that do not apply in this case. Therefore, Carthen has failed to make a substantial showing of the denial of a constitutional right and his request for a COA is denied. His motion to proceed in forma pauperis is also denied for failure to show a nonfrivolous

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    of 8

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    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 courts 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. Carthens 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 courtappointed 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.
    Carthens 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
    2

    proceed further.

    Slack v. McDaniel , 529 U.S. 473, 484 (2000) (internal

    quotations omitted). The district court did not reach the merits of Mr. Carthens
    petition, adopting instead the magistrate courts 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 judges 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 Courts assumption of jurisdiction
    3

    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, 49394 (1989). Under these circumstances, the petitioners
    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.
    omitted). Like the petitions in

    Id. (citations

    Maleng and Lackawanna County District Attorney

    v. Coss, 532 U.S. 394 (2001), Mr. Carthens petition can be read as an attack on
    the sentence he currently serves, satisfying the in custody requirement of
    4

    2254. The magistrate and district courts therefore erred in determining that they
    lacked jurisdiction to consider the petition.

    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 40304 (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
    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 courts
    conclusion, the better reading of Broomes is that its holding rests not on the
    statutes 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)).
    1

    defendant can[not] be faulted for failing to obtain timely review of a


    constitutional claim because no avenue of review was available.

    Id. at 40405.

    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, 118788 (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
    6

    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.

    Mr. Carthen also appeals the denial of his motion to proceed


    pauperis . In order to succeed on [a] motion [to proceed

    in forma

    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

    In disposing of Mr. Carthens 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 Commn, 104 F.3d 325, 32728 (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).
    2

    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. Carthens request for a COA and
    DISMISS this appeal. Petitioners motion to proceed

    in forma pauperis is also

    DENIED .
    Entered for the Court,
    Patrick Fisher, Clerk

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