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Hough v. State

United States District Court, District of Nevada

January 9, 2015

MARK GARY HOUGH, Petitioner,
STATE OF NEVADA, et al., Respondents.



More than twenty years ago, Mark Gary Hough was convicted in Nevada state court and given a suspended sentence. Hough filed a habeas petition[1] in 2000 challenging that sentence, but it was dismissed because federal courts may consider habeas challenges only when filed by persons still “in custody” for their conviction, and Hough’s suspended sentence was discharged two years earlier.[2] Nearly 12 years later, Hough filed this second petition—challenging the same conviction —and the court ordered Hough to show cause why this action should not be dismissed for still-lacking habeas jurisdiction.[3] Although Hough urges that collateral consequences of his conviction render this a live controversy for Article III purposes, he confuses mootness for the issue raised by the court’s show-cause order: whether this court ever obtained jurisdiction over this habeas petition in the first place when Hough’s sentence expired 15 years before it was filed. Because, once a sentence has expired, the collateral consequences of the conviction do not render an individual “in custody” for purposes of a habeas challenge, this court lacks jurisdiction over Hough’s petition, and it must be dismissed.


In 1994, Hough pled guilty to, and was convicted in Nevada state court of, possessing stolen property. He was given a suspended sentence and placed on up to five years probation. The sentence was deemed discharged on March 2, 1998.

More than two years later, petitioner—who now resides in England—filed a motion in the United States District Court for the District of Nevada to vacate, set aside, or correct that discharged sentence under 28 U.S.C. § 2255. The court liberally construed the filing as a federal habeas petition under 28 U.S.C. § 2254 challenging a state sentence, because a § 2255 motion can challenge only a federal conviction. The court dismissed that petition for lack of jurisdiction because Hough’s sentence had been discharged (and he was thus no longer in custody for purposes of federal habeas jurisdiction) two years before he filed the petition.[5]

Petitioner renews his challenge of that sentence with this March 2013 pro se habeas petition.[6] The court discovered its redundancy and prior dismissal during the initial screening process, reminded Hough that the federal statute gives district courts jurisdiction to adjudicate habeas petitions only from persons “in custody, ” and ordered Hough to demonstrate how this court has jurisdiction to hear his challenge to a conviction when the sentence was discharged more than 15 years ago.[7] Hough timely responded, arguing that his habeas challenge is not moot because the potential that a future sentence may be enhanced as a result of this conviction is an ongoing collateral consequence that makes this a “live” controversy over which this court has jurisdiction.[8]Hough’s submission—though well presented—has not demonstrated that this court obtained jurisdiction over this fatally late petition.


The federal habeas statute gives district courts jurisdiction to entertain petitions challenging a judgment of conviction only for persons who are “in custody” for the conviction when the petition is filed. See, e.g., Maleng v. Cook, 490 U.S. 488, 490-91 (1989). A habeas petitioner no longer is “in custody” under a judgment of conviction for purposes of federal habeas jurisdiction if the sentence imposed by the judgment has fully expired before the federal petition is filed. Maleng, 490 U.S. at 492; De Long v. Hennessey, 912 F.2d 1144, 1146 (9th Cir. 1990).

Hough’s sentence on the challenged conviction expired in 1998—more than fifteen years before he filed this petition—and the arguments in his show-cause response do not establish that the court has jurisdiction over this challenge. The thrust of Hough’s argument is that his petition remains a live controversy over which this court retains jurisdiction because he is suffering ongoing collateral consequences from the 1994 conviction. The only consequences he identifies are the possibility that the conviction could be used to enhance his punishment on a future conviction and the prospect that his civil rights might be restricted.[9]

Hough confuses whether a petition over which a court had jurisdiction in the first instance has become moot with the question identified in the show-cause order: whether the court, in fact, obtained jurisdiction over the petition in the first place. The answer to this pertinent question is provided by the United States Supreme Court’s decision in Maleng v. Cook. The High Court explained in Maleng that collateral consequences may save a habeas petition from dismissal as moot when the petitioner’s sentence expires after the petition is filed, but a petition filed after the expiration of the sentence is dead on arrival and cannot be revived by collateral consequences:

We have never held . . . that a habeas petitioner may be “in custody” under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. Indeed, our decision in Carafas v. LaVallee strongly implies the contrary. In Carafas, the petitioner filed his habeas application while he was actually incarcerated under the sentence he sought to attack, but his sentence expired and he was unconditionally discharged from custody while his appeal from the denial of habeas relief below was pending before this Court. The State argued that the unconditional discharge rendered the case moot. We rejected this argument, holding that the “collateral consequences” of the petitioner’s conviction - his inability to vote, engage in certain businesses, hold public office, or serve as a juror - prevented the case from being moot. We went on to say, however, that the unconditional release raised a “substantial issue” as to the statutory “in custody” requirement. While we ultimately found that requirement satisfied as well, we rested that holding not on the collateral consequences of the conviction, but on the fact that the petitioner had been in physical custody under the challenged conviction at the time the petition was filed. The negative implication of this holding is, of course, that 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.
The question presented by this case is whether a habeas petitioner remains “in custody” under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted. We hold that he does not. While we have very liberally construed the “in custody” requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction. Since almost all States have habitual offender statutes, and many States provide as Washington does for specific enhancement of subsequent sentences on the basis of prior convictions, a contrary ruling would mean that a petitioner whose sentence has completely expired could nonetheless challenge the conviction for which it was imposed at any time on federal habeas. This would read the “in custody” requirement out of the statute and be contrary to the clear implication of the opinion in Carafas v. LaVallee.

Maleng, 490 U.S. at 491-92 (first italic emphasis in original) (internal citations omitted).

Had Hough’s sentence had not yet fully expired when his federal petition was filed, collateral consequences might save his otherwise timely filed action from dismissal as moot. But because Hough’s sentence expired more than 15 years before he filed this petition, collateral consequences are irrelevant. To hold otherwise would “read the ‘in custody’ ...

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