Opinion
1:00CV00107.
January 18, 2002
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Petitioner Robbie James Lyons, a North Carolina death row inmate, has filed in this court a habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his 1993 state court conviction for common law robbery. Petitioner Lyons was given a sentence of supervised probation for three years. He petitions this court for a writ of habeas corpus remanding his case to allow Petitioner to enter a new plea to the charges. Lyons includes in his petition a reference to a later murder conviction and sentence of death entered against him on May 6, 1994. Lyons asks this court to order vacation of the first-degree murder conviction in which the common law robbery conviction was one of two convictions used to support the finding of a statutory aggravating circumstance. However, Petitioner has challenged his murder conviction and sentence in a separate habeas action, No. 1:00CV00108 pending in this court, and therefore the petition in the case at bar, No. 1:00CV00107, will be construed as a challenge directed solely toward the 1993 conviction for common law robbery. Any other construction would render this petition a nullity because it would be wholly duplicative of claims raised in the separate petition. Petitioner is represented in this habeas action by attorneys J. Kirk Osborn and Ernest L. Conner, Jr. Respondent R.C. Lee, the Warden of Central Prison ("the State"), is represented by the North Carolina Attorney General.
THE STATE COURT PROCEEDINGS
On June 24, 1993, Petitioner Lyons was arrested and jailed in Forsyth County under the name Robby James Johnson and charged with robbery with a deadly weapon for a crime that took place on Stratford Road in Winston-Salem. On August 10, 1993, Lyons submitted an Alford plea to one count of common law robbery. He was released from the Forsyth County jail under a sentence of three years supervised probation.
On September 25, 1993, Lyons committed armed robberyofa convenience store in WinstonSalem and shot and killed Stephen Stafford during the robbery. On January 31, 1994, the Forsyth County Grand Jury indicted Lyons on one count of attempted armed robbery and one count of first degree murder of Stephen Stafford. On April25, 1994, Lyons was capitallytried to ajuryin Forsyth County. On May 3, 1994, the jury found Lyons guilty of first-degree murder under the felony murder rule with the attempted armed robbery as the underlying felony.
During the sentencing phase of the trial for first-degree murder the jury found the following statutory aggravating factor: Lyons had been convicted previously ofa felony involving the use or threat of violence to the person. In support of this statutory aggravating factor, the State had introduced evidence of the Stratford Road common law robbery conviction and another armed robbery conviction. On May 6, 1994, the jury recommended the death penalty for the first-degree murder. The trial court imposed the death penalty and arrested judment on the attempted armed robbery conviction.
Lyons appealed to the North Carolina Supreme Court, which affirmed Lyons' conviction and death sentence on April 4, 1996. State v. Lyons, 343 N.C. 1, 468 S.E.2d 204 (1996). Lyons filed a petition for writ of certiorari in the United States Supreme Court, but the Court denied the petition on October 7, 1996. Lyons v. North Carolina, 519 U.S. 894, 117 S.Ct. 237, 136 L.Ed.2d 167 (1996). Lyons did not challenge his common law robbery conviction in either appeal.
On April 14, 1997, Lyons filed a Motion for Appropriate Relief [hereinafter "MAR"] from the common law robbery conviction and a Motion for Appropriate Relief from the first-degree murder conviction in Forsyth County Superior Court. Evidentiary hearings were held on March 6 and April 27, 1998. On June 11, 1998, the State court denied both of Lyons' MARs. On August 7, 1998, Lyons filed a petition for certiorari review in the North Carolina Supreme Court, which the Court denied on August 19, 1999. On November 15, 1999, Lyons filed two petitions for certiorari review (one from the common law robbery conviction and one from the first-degree murder conviction) in the United States Supreme Court. On January 18, 2000, the United States Supreme Court denied certiorari in both cases.
On January 28, 2000, Lyons timely filed two separate petitions for a writ of habeas corpus in this court. One challenges his conviction for the 1993 common law robbery and the other challenges his first-degree murder conviction (Nos. 1:00CV00107 and 1:00CV00108, respectively). The parties have briefed their positions with respect to the petition. The petition is now before the court for consideration. See Rule 8(a), Rule Governing Section 2254 Cases.
THE CLAIMS OF THE HABEAS CORPUS PETITION
Petitioner Lyons presents the following claim in his habeas petition regarding the common law robbery conviction:
I. The death sentence was obtained by the use of an invalid, unlawful and unconstitutional conviction for common law robbery. The Petitioner was sentenced to death on May 6, 1994. The sole aggravating factor used to support this death sentence was that the Petitioner had previously been convicted of a felony involving the use or threat of violence to the person. To support this sole aggravating circumstance, the State used Petitioner's conviction for robbery with a dangerous weapon obtained after the commission ofthe first-degree murder and the Petitioner's conviction for common law robbery. On August 10, 1993, the Petitioner entered his plea of guilty to common law robbery pursuant to North Carolina v. Ajford. At the plea hearing, the State admitted on the record that a factual basis for an essential element of the offense of common law robbery-was-missing. Nothing was taken from the alleged victim of the alleged common law robbery. Larcenyis an essential element of common robbery. The conviction for common law robbery was instrumental in the State's case and argument for the death penalty in the Petitioner's capital sentencing hearing.
(Pleading no. 2, at 5.)
Actually, this "statement of claim" is over inclusive and partially duplicative of claims Petitioner makes in his companion case, No. 1:00CV00108. A petitioner may challenge only one conviction in a habeas petition. In this petition, Lyons challenges his 1993 conviction for common. law robbery. In a separate petition, Lyons challenges his murder conviction as enhanced for sentencing purposes by his common law robbery conviction. Accordingly, the conviction that is the subject of the petition at bar is the 1993 common law robbery standing alone. The court will address claims concerning the 1994 murder conviction and death sentence, as enhanced by the common law robbery conviction, under the separate petition, No. 1:00CV00108.
See Petitioner's "Corrected Brief in Support of Petition for Writ of Habeas Corpus for the Common Law Robbery Conviction" (emphasis added) (Pleading no. 14). The title of Petitioner's brief accurately identifies the conviction that is being called into question in this habeas proceeding.
Therefore, the habeas claim cognizable in this petition is stated by Petitioner Lyons as follows:
On August 10, 1993, the Petitioner entered his plea of guilty to common law robbery pursuant to North Carolina v. Alford. At the plea hearing, the State admitted on the record that a factual basis for an essential element of the offense of common law robbery was missing. Nothing was taken from the alleged victim of the alleged common law robbery. Larceny is an essential element of common law robbery.
(Pleading no. 2, at 5.)
DISCUSSION
As a threshold matter, the court must determine whether it has jurisdiction to hear this matter. For the reasons stated below, the court concludes that it does not have subject matter jurisdiction.
The United States district courts have jurisdiction to entertain petitions forhabeas relief only from persons who are "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3); see also 28 U.S.C. § 2254. Courts have interpreted this statutory language as requiring that the habeas petitioner be "in custody" under the conviction or sentence under attack at the time of his petition. Maleng v. Cook, 490 U.S. 488, 492, 109 S.Ct. 1923, 1926, 104 L.Ed.2d 540 (1989).
In Maleng, the Court held that a federal court does not have jurisdiction over a habeas petition challenging a sentence that has fully expired even though the sentence may have laterbeen used to enhance a sentence that has not expired. Id. at 492, 109 S.Ct. at 1926. Thus, a petitioner may not challenge a conviction for which the sentence has expired, even if that conviction affects the length or terms of the petitioner's current sentence, because the petitioner is not "in custody" for purposes of the expired conviction. Id. See also Hogan v. Iowa, 952 F.2d 224 (8th Cir. 1991) (holding that the court lacked jurisdiction where the petitioner filed a habeas corpus petition challenging a conviction that was used as an aggravating circumstance in a later death sentence conviction where the petitioner was no longer "in custody" for the earlier conviction). However, under extremely limited circumstances the petitioner may be ableto indirectly challenge a conviction for which he is no longer "in custody" by challenging a current sentence that is illegally enhanced by challenging a current sentence that is illegally enhanced by an allegedly invalid prior conviction. See Lackawanna County Dist. Attainey v. Coss., 532 U.S. 394, 121 S.Ct. 1567 (2001); Daniels v. United States, 532 U.S. 374. 121 S.Ct. 1578, 1582-83 (2001); Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732 (1994).
In this case, on August 10, 1993, Petitioner received a sentence of supervised probation for three years for the common law robbery conviction. The probationary sentence for the 1993 conviction has long expired. Therefore, Petitioner is no longer "in custody" for his common law robbery conviction. Accordingly, on the authority of Maleng, the court lacks jurisdiction over Petitioner's claim in this action.
The court notes, however, that its disposition of this petition is without prejudice to the habeas corpus petition filed by Petitioner to challenge his sentence in his first-degree murder conviction, alleged to have been improperly enhanced on the basis of the 1993 conviction. See No. 1:00CV00108.
CONCLUSION
For reasons set forth above, IT IS RECOMMENDED that the habeas corpus petition of Robbie James Lyons challenging his 1993 state court conviction for common law robbery be dismissed for lack of jurisdiction.