
USCA1 Opinion

	




          June 23, 1992         [NOT FOR PUBLICATION]                                 ___________________          No. 92-1479                                                KARL J. WHORF,                                Plaintiff, Appellant,                                          v.                       COMMISSIONER, DEPARTMENT OF CORRECTIONS,                                MASSACHUSETTS, ET AL.,                                Defendants, Appellees.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. A. David Mazzone, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                                 Breyer, Chief Judge,                                         ___________                           Campbell, Senior Circuit Judge,                                     ____________________                               and Cyr, Circuit Judge.                                        _____________                                 ___________________               Karl  J.  Whorf pro  se  on Application  for  Certificate of               _______________          Probable Cause.                                  __________________                                 __________________                                             Per Curiam.    The district court dismissed petitioner's                 __________            habeas  corpus petition on the ground that petitioner was not            "in  custody" and  denied  a certificate  of probable  cause.            Petitioner  now  seeks a  certificate  of  probable cause  to            appeal the dismissal.                  Since   petitioner's   application  challenged   a  fully            discharged  sentence, we  agree with  the district  court and            deny the certificate.                   The relevant facts are as follows:                 In  November, 1978,  petitioner  received a  twenty year            sentence to  M.C.I., Concord, for armed  robbery while masked            (the "Concord  sentence").  He  was granted parole  from this            Concord sentence  in January,  1980.   In  December, 1980,  a            parole violation warrant issued.                   In  February,  1981, petitioner  was indicted  for three            armed  robberies and  assault with  a dangerous  weapon.   He            pleaded  guilty and, as entered  in the mittimus  on April 2,            1981,  was sentenced  to serve  three concurrent five  to ten            year terms at M.C.I., Walpole (now  Cedar Junction) "from and            after sentences  now serving,"  (the "Walpole  sentences"). A            fourth sentence was  suspended.  At the  time of petitioner's            commitment to M.C.I.,  Walpole, the parole violation  warrant            from  the  Concord  sentence  was lodged  against  him  as  a            detainer.                                          -2-                 On December 15, 1988,  petitioner moved to "correct" his            Walpole  sentences  with  the  objective  of eliminating  the            continuing vitality  of the  Concord sentence.   Judge Abrams            (who  had originally  imposed the Walpole  sentences) ordered            the   mittimus    "corrected"   to   read,   "five   to   ten            years...forthwith from  the sentence imposed on  November 30,            1978 to M.C.I., Concord, nunc pro tunc as of April 2, 1981.".            The judge's  "corrected sentences" were intended  to have the            effect of  extinguishing the time  remaining to be  served on            the petitioner's previous Concord conviction.                   The  state  appealed.  The  Massachusetts  Appeals Court            reversed and ordered the original mittimus reinstated, on the            grounds  that Mass.  R. Crim. P.  30(a) could not  be used to            correct a  misunderstanding by the judge  of the consequences            of  his action.  Judge  Abrams once again  ordered the record            corrected, now under Mass. R. Crim.  P. 42.  The state  again            sought review,  now  by writ  of  certiorari to  the  Supreme            Judicial Court.   That  court vacated the  second "corrected"            sentence,  again reinstating  the original  mittimus,  on the            grounds  that under  Massachusetts law  the judge's  nunc pro            tunc correction was unlawful in that "a forthwith sentence to            state   prison   could  not   terminate  or   extinguish  the            defendant's previously imposed sentence...".                 In  the  meantime,  the  Walpole  sentences  were  fully            discharged on  March 2,  1989.   The instant application  for                                         -3-            habeas corpus is directed at these Walpole sentences, raising            a  variety of challenges to the underlying conviction and the            validity of petitioner's plea to the original indictments.                 Under  Maleng v.  Cook, 490 U.S.  488 (1989),  "once the                        ______     ____            sentence imposed for a conviction has completely expired, the            collateral consequences of that conviction are not themselves            sufficient  to  render an  individual  'in  custody' for  the            purposes of a habeas attack upon it".  Id. at 492.                                                         __                 Accordingly, petitioner's application for  a certificate            of  probable  cause  to appeal  is  denied.   Nothing  herein            prevents petitioner  from filing  a new petition  directed at            the Concord sentence,  or any other sentence,  provided he is            still "in custody" under it.                  So ordered.                 ___________                                         -4-
