Garlotte v. Fordice, 515 U.S. 39 (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 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 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 45 (quoting id. 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 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 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 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.

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 "holding." Peyton v. Rowe, 391 U.S. 54, 67 (1968). Other language in the opinion suggests a narrower holding, however. See id. at 65 (prisoners are in custody "if any consecutive sentence they are scheduled to serve was imposed as a 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." Maleng v. Cook, 490 U.S. 488, 493 (1989) (emphasis added).