                              In the
 United States Court of Appeals
                 For the Seventh Circuit
                          ____________

No. 01-3255
KIRK R. MARTIN,
                                               Petitioner-Appellant,
                                 v.

JOHN DEUTH,
                                              Respondent-Appellee.
                          ____________
             Appeal from the United States District Court
      for the Northern District of Indiana, Fort Wayne Division.
                  No. 00 C 399—Allen Sharp, Judge.
                          ____________
       ARGUED MAY 21, 2002—DECIDED AUGUST 1, 2002
                          ____________


  Before BAUER, COFFEY and RIPPLE, Circuit Judges.
  RIPPLE, Circuit Judge. The Petitioner, Kirk Martin, was
convicted on three separate occasions for various of-
fenses involving reckless driving and driving while in-
toxicated. The sentence for his first conviction has expired.
Mr. Martin has filed a habeas petition seeking relief from
the sentence he currently is serving, but attacking the con-
stitutionality of only his first conviction. The district
court denied the petition. For the reasons set forth in the
following opinion, we affirm the judgment of the district
court.
2                                                  No. 01-3255

                               I
                      BACKGROUND
A. Facts
                               1.
  In April 1997, Mr. Martin was convicted in Indiana state
court of reckless driving; we shall refer to this conviction
as his “first conviction.” He was sentenced to 180 days of
incarceration (all but six days suspended) and one year of
probation, and his driving privileges were suspended for
180 days. It is this conviction that he attacks as unconsti-
tutional, claiming, among other things, that he was intoxi-
cated during sentencing and that his guilty plea was there-
fore involuntary.


                               2.
  In September 1997, Mr. Martin pleaded guilty to driv-
ing while intoxicated and driving with a suspended license,
his “second conviction.” For each of these offenses, the court
sentenced him to one year of incarceration, 180 days of
which were suspended, and probation for one year, and
the court suspended his driving privileges for one year.
He served 90 days of his sentence before he was released.


                               3.
   In June 1998, Mr. Martin was found guilty of several
offenses: (1) driving while intoxicated; (2) refusing to iden-
tify himself; (3) driving to the left of center; (4) driving with
a suspended license; (5) driving while intoxicated, sec-
ond offense; and (6) habitual substance offender; collec-
tively, his “third conviction.” The court sentenced Mr. Mar-
tin as follows: one and a half years of incarceration and the
No. 01-3255                                                  3

suspension of his driving privileges for two years for the
driving while intoxicated, second offense, count; five years
of incarceration for the habitual substance offender count;
and 60 days of imprisonment for the refusal to identify
count; all sentences to run concurrently. The other counts
were dismissed. The court also revoked the probation that
Mr. Martin was serving under his second conviction and
ordered the balance of his sentence for the second con-
viction to be served, the sentence to run consecutive to the
sentence imposed for Mr. Martin’s third conviction.


B. District Court Proceedings
  In October 2000, while Mr. Martin was serving the sen-
tence for his third conviction, he filed a petition for a writ
of habeas corpus in the district court under 28 U.S.C.
§ 2254. In his petition, Mr. Martin challenges his first
conviction as unconstitutional. The state filed a motion to
dismiss on the basis that Mr. Martin was no longer “in
custody” for purposes of § 2254 because the sentence for
the conviction he challenged had expired. Mr. Martin filed
a traverse in which he argued that he was “in custody”
because his third conviction depended on his second con-
viction, which depended on his first conviction, which was
unconstitutional.
   The district court denied the petition. It ruled that Mr.
Martin was not “in custody” because the sentence on his
first conviction had expired and neither his second nor
third convictions had been enhanced as a result of the first.
The district court also ruled that, even if Mr. Martin was
“in custody,” his petition was untimely because it was
filed more than one year after his first conviction became
final.
  Mr. Martin filed a notice of appeal in August 2001. The
district court treated the notice of appeal as a certificate of
4                                                     No. 01-3255

appealability and denied the certificate on the grounds
that Mr. Martin had not made a sufficient showing of the
denial of a constitutional right. In October 2001, this court
granted the certificate of appealability.


                                II
                         DISCUSSION
  The district courts have jurisdiction to hear state pris-
oner habeas petitions only from persons who are “in
custody pursuant to the judgment of a State court . . . .” 28
U.S.C. § 2254(a); see Maleng v. Cook, 490 U.S. 488, 490 (1989).
The Supreme Court has interpreted the “in custody” lan-
guage as “requiring that the habeas petitioner be ‘in cus-
tody’ under the conviction or sentence under attack at
the time his petition is filed.” Maleng, 490 U.S. at 490. Sig-
nificantly, a petitioner challenging a current sentence “as
enhanced by [an] allegedly invalid prior conviction” sat-
isfies the “in custody” requirement of § 2254 even though
the sentence imposed for the prior conviction has expired.
See id. at 493; see also Lackawanna County Dist. Attorney
v. Coss, 532 U.S. 394, 401-02 (2001) (applying Maleng).
  Mr. Martin pointed out in his memorandum in support of
his habeas petition that overturning his first, allegedly
unconstitutional conviction would undermine as well his
second conviction, the balance of the sentence for which
                                                      1
he had yet to serve at the time he filed his petition. Con-

1
   Mr. Martin’s second conviction included the charge of driv-
ing while suspended, and his license had been suspended as
a result of the first conviction. The district court concluded that
Mr. Martin’s first conviction and resulting suspension had not
“enhanced” the sentence he received for his second convic-
                                                      (continued...)
No. 01-3255                                                   5

strued with the deference afforded pro se litigants, see
Haines v. Kerner, 404 U.S. 519, 520 (1972) (stating that
Court holds pro se complaint “to less stringent standards
than formal pleadings drafted by lawyers”), Mr. Martin’s
habeas petition can be read as attacking the sentence
he received for his second conviction, which had not ex-
pired at the time he filed his petition. Moreover, Mr. Mar-
tin can be said to be “in custody” pursuant to his second
sentence even though he had not yet begun to serve it.
See Maleng, 490 U.S. at 493.
   Even though Mr. Martin may be said to have been “in
custody” at the time he filed his habeas petition, the re-
lief he seeks is unavailable. As the Supreme Court held in
Coss:
    [O]nce a state conviction is no longer open to direct
    or collateral attack in its own right because the defen-
    dant failed to pursue those remedies while they were
    available (or because the defendant did so unsuccess-
    fully), the conviction may be regarded as conclusively
    valid. If that conviction is later used to enhance a crim-
    inal sentence, the defendant generally may not chal-
    lenge the enhanced sentence through a petition under
    § 2254 on the ground that the prior conviction was
    unconstitutionally obtained.


1
   (...continued)
tion, because the sentence for driving while suspended (Count II
of the second conviction) was to run concurrent with, and was
equal to, the sentence for driving while intoxicated (Count I of
the second conviction), “so vacating it would not affect his
sentence.” Br. of Appellant at App. 7. While vacating Mr. Mar-
tin’s sentence for driving while suspended may not affect the
total time he serves in jail, however, it certainly would affect
his sentence for driving while suspended.
6                                               No. 01-3255

Coss, 432 U.S. at 403-04 (internal citation omitted). As in
Coss, Mr. Martin is challenging his current sentence on
the ground that a prior conviction was unconstitutional.
The Court recognized an exception in Coss for habeas pe-
titions that challenge an enhanced sentence “on the basis
that the prior conviction used to enhance the sentence
was obtained where there was a failure to appoint coun-
sel in violation of the Sixth Amendment, as set forth in
Gideon v. Wainwright, 372 U.S. 335 (1963).” Coss, 432 U.S.
at 404. Mr. Martin has made no such claim here, however.
Therefore, because, absent such an allegation, the relief
he seeks is unavailable under Coss, we must affirm the
judgment of the district court.


                       Conclusion
  Because Mr. Martin cannot collaterally attack his first
conviction in its own right, he cannot challenge his subse-
quent sentences as enhanced by the first. We therefore
affirm the judgment of the district court denying Mr. Mar-
tin’s petition.
                                                  AFFIRMED

A true Copy:
       Teste:

                          _____________________________
                          Clerk of the United States Court of
                            Appeals for the Seventh Circuit




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