Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-92-201-TSZ. Thomas S. Zilly, District Judge, Presiding.
Before: Thomas Tang, Robert Boochever, and Stephen Reinhardt, Circuit Judges. Opinion by Judge Reinhardt.
REINHARDT, Circuit Judge:
Louis W. Brock, currently confined pursuant to the Washington Sexually Violent Predators Act at the Special Commitment Center of the Washington State Penitentiary, appeals the district court's dismissal of his pro se 28 U.S.C. § 2254 habeas corpus petition for lack of subject matter jurisdiction. In his petition, Brock challenges the constitutionality of his 1974 assault conviction. Although the sentence imposed for this conviction expired in 1984, Brock alleges that the state relied on the conviction, at least in part, in the proceedings resulting in his 1991 confinement as a "sexually violent predator."
The district court ruled that Brock was not "in custody" under § 2254 for the purpose of challenging his 1974 conviction because Brock had already finished serving the sentence imposed pursuant to that conviction. We disagree. Following Feldman v. Perrill, 902 F.2d 1445 (9th Cir. 1990),*fn1 we construe Brock's petition as a challenge to his current confinement as predicated upon his prior expired conviction. Accordingly, we reverse and remand to the district court for further proceedings.*fn2
In 1974, Brock pled guilty to the offense of second degree assault, a violation of Section 9A.36.021 of the Revised Code of Washington. Brock was sentenced to a ten-year prison term for this offense. He was released from custody and placed on parole in 1981, and his sentence expired in 1984.
On March 22, 1991, Washington filed a petition for commitment alleging that Brock was a "sexually violent predator" within the meaning of the Washington Sexually Violent Predators Act, Wash. Rev. Code §§ 71.09.010-71.09.902 ("the Act").*fn3 On November 22, 1991, a jury tried Brock in absentia and granted the state's petition.*fn4 The state trial court subsequently entered an Order of Commitment authorizing Brock's indefinite confinement.
On April 30, 1991, after Washington had filed its petition under the Act but before the jury trial, Brock filed a pro se personal restraint petition with the Washington State Court of Appeals challenging his 1974 second degree assault conviction. Brock claimed that his 1974 conviction was based on an involuntary and uninformed plea agreement which the State had breached by prosecuting and indefinitely incarcerating him as a sexually violent predator. The Washington State Court of Appeals dismissed this petition without leave to amend, ruling that Brock had not adequately identified the error underlying his conviction. The Washington Supreme Court then denied Brock's motion for discretionary review of this dismissal, although it noted that Brock would be able to bring another petition if a then-pending constitutional challenge to the Act was successful.*fn5
Brock subsequently filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 in federal district court, again challenging the constitutionality of his 1974 assault conviction. Without filing an answer, Respondent Weston moved to dismiss Brock's petition, arguing that Brock was not "in custody" under § 2254 for the purpose of challenging the 1974 conviction because he had completed the sentence imposed pursuant to that conviction. The district court agreed, and dismissed Brock's petition for lack of subject matter jurisdiction. Brock timely appeals that ruling.
Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C. § 2254(a), is limited to those persons "in custody pursuant to the judgment of a State." See also id. § 2241(c)(3). The respondent asserts that, because Brock's 1974 sentence for assault has already expired, Brock is no longer in custody pursuant to his assault conviction and may not challenge its validity via a § 2254 petition.
Brock contends that he is still in custody under his 1974 assault conviction because his current confinement "constitutes an extension or continuation" of the sentence imposed pursuant to that conviction. Yet, while the Act's application is predicated upon the existence of one or more past criminal convictions, confinement under the Act is not simply an extension of an inmate's previous sentence: it has additional prerequisites and involves a separate jury trial. Even though Brock's ...