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[NOT FOR PUBLICATION]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
_______________
Probable Cause.

se

on Application

for

Certificate of

__________________
__________________

Per Curiam.
__________
habeas
"in

The district court dismissed petitioner's

corpus petition on the ground that petitioner was not

custody" and

Petitioner

now

denied
seeks a

a certificate
certificate

of probable

of

cause.

probable cause

to

appeal the dismissal.

Since

petitioner's

discharged

sentence, we

application
agree with

challenged
the district

fully

court and

deny the certificate.

The relevant facts are as follows:
In

November, 1978,

sentence to

petitioner

received a

M.C.I., Concord, for armed

twenty year

robbery while masked

(the "Concord

sentence").

Concord sentence

He

was granted parole

in January,

1980.

In

from this

December, 1980,

parole violation warrant issued.

In
armed

February,

1981, petitioner

robberies and

assault with

pleaded
1981,

guilty and, as entered

was sentenced

to serve

from

the

Concord

weapon.

on April 2,
to ten

At the

sentences"). A

time of petitioner's

Walpole, the parole violation

sentence

He

Cedar Junction) "from and

(the "Walpole

suspended.

commitment to M.C.I.,

for three

three concurrent five

now serving,"

fourth sentence was

a dangerous

in the mittimus

year terms at M.C.I., Walpole (now

after sentences

was indicted

was lodged

against

warrant

him

as

detainer.

-2-

On December 15, 1988,

Walpole

sentences

continuing vitality
(who

had originally

with

petitioner moved to "correct" his

the

of the

objective

of eliminating

Concord sentence.

imposed the Walpole

the

Judge Abrams

sentences) ordered

the

mittimus

"corrected"

years...forthwith from

to

read,

"five

the sentence imposed on

to

ten

November 30,

1978 to M.C.I., Concord, nunc pro tunc as of April 2, 1981.".

The judge's
effect of

"corrected sentences" were intended

extinguishing the time

to have the

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.

correct a
of

R. Crim. P.

30(a) could not

misunderstanding by the judge

his action.

Judge

sought review,

now

Judicial Court.
sentence,
grounds

by writ

That

of

ordered the record

P. 42.

The state

certiorari to

court vacated the

again reinstating
that under

of the consequences

Abrams once again

corrected, now under Mass. R. Crim.

the

again
Supreme

second "corrected"

the original

Massachusetts law

be used to

mittimus,

the judge's

on the
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

discharged on

meantime,
March 2,

the

Walpole

1989.

-3-

sentences

were

The instant application

fully
for

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

purposes of a habeas attack upon it".

'in

custody' for

Id. at 492.
__

Accordingly, petitioner's application for

of

probable

cause

prevents petitioner
the Concord sentence,

to appeal
from filing

denied.

a certificate
Nothing

a new petition

or any other sentence,

still "in custody" under it.

So ordered.
___________

is

the

herein

directed at

provided he is

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