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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 94-6790
- --------
- HARVEY F. GARLOTTE, PETITIONER v. KIRK
- FORDICE, GOVERNOR OF MISSISSIPPI
- on writ of certiorari to the united states court
- of appeals for the fifth circuit
- [May 30, 1995]
-
- 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 Constitu-
- tion 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 caselaw 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 had yet to commence might
- prevent stale claims from being brought years after the
- crime and trial. Peyton, 391 U. S., 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 6-7
- (quoting id., 391 U. S. at 67).
- 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 Maleng v.
- Cook's proper insistence that the habeas statute does not
- permit prisoners to challenge expired convictions. 490
- U. S. 488, 490-491 (1989) (-We have interpreted the statu-
- tory 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 lan-
- guage in another. Given 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.
-