*2 Alabama, ern District of arguing that his *, Before WISDOM RONEY and illegal conviction was because of the Mobile HATCHETT, Judges. Circuit County failure Sheriff’s to act on the de- tainer. respondents The moved dismiss HATCHETT, Judge: Circuit court, action and consider- We must determine whether the blemish ing the motions to dismiss as motions for on one’s record resulting from one convic- summary judgment, summary entered tion is enough consequence of a collateral to judgment in their favor and dismissed Mal- prevent corpus petition being a habeas from loy’s petition grounds on the that the mate- moot, petitioner where the in custody, is not essentially rial facts were undisputed and and where the petitioner has con- that Malloy’s Malloy claim was frivolous. Finding victions. that such a blemish is not appealed and on June a consequence, affirm. we 1979, the former Fifth summarily II, Malloy,
Arthur Brennan appeals the the judgment vacated of the district court dismissal of his corpus petition, habeas 28 and remanded the case for determination alleged which U.S.C.A. that his 1977 During pendency on the merits. of thé conviction for forgery Circuit, was unconstitutional- to the former Fifth ly imposed. Mobile County, placed Ala- court Malloy parole, on and on No- bama, authorities arraigned 18, 1979, arrested and vember discharged he was from forgery charges. While out on parole respect sentence and with to the trial, pending bail imprisoned he was for a conviction under attack in this proceeding. parole violation. imprisoned, While In May, respondents filed another sheriff of Mobile County issued a detainer motion to asserting Malloy’s dismiss to the holding Malloy authorities requesting release from parole sentence and in Novem- that Malloy ber, 1979, be turned over to the sheriff petition rendered his moot. The for trial on the forgery charge upon com- magis- trial court referred the matter to a pletion imprisonment parole for the trate who petition recommended that the be * Wisdom, Honorable John Minor U. S. Circuit tion. Judge Circuit, sitting by designa- for the Fifth negate failed to any possi- existence of because the conviction
dismissed consequences to those bility consequences added no collateral that collateral ad- burdening Malloy as a result of his here to the under attack. The conviction involving for offenses asserting convictions argument by state counters this adopted turpitude. The district court moral were cited consequences that no collateral magistrate recommendation of the perceived. because none were *3 appeal this followed. primarily custody with the in Concerned issue, Supreme the in jurisdictional
Our task is to decide whether a
corpus pro-
in a habeas
habeas
re Carafas held
corpus petitioner’s unconditional
jurisdiction has
ceeding, “once the federal
custody
peti
lease from state
renders the
Court,
tion moot
in the District
it
is not
consequences
where no
collateral
attached
by
petitioner
to the
the release of the
conviction under attack cause the
defeated
prior
completion
proceedings
to
of
on such
petitioner
any
to suffer
the loss of
civil
238,
application.” 391
at
88
at
previously deprived
liberties not
of as a
U.S.
S.Ct.
did, however, preliminari-
result of
the cir
1560. The Court
prior convictions. Unlike
question
address the
mootness and its
normally presented
ly
cumstances
in a case of
of
nature,
courts
power
this
the substantial
here is not
effect on the
of
federal
to
issue
grant
declaring
whether
“in
relief.
the case not
Malloy has satisfied the
custo
moot,
dy”
consequences
the Court discussed the
requirement necessary to establish fed
2254(d).
burdening
eral
still
as a
of his
jurisdiction under section
Cf.
Carafas
result
Blackburn,
(5th
“In consequence
Sinclair v.
poses.
require
Such a rule would
us to read
The types of civil
liberties
language
of Carafas mentioned above which Carafas refers are similarly applica
merely surplusage
as
or dicta. We refuse
Thus,
vote,
in
ble Alabama.
cannot
to do so.
If the Supreme Court desired to
182;
Ala.Const. art. VIII
he cannot serve
hold that a conviction in and of itself consti-
juror,
12-16-60(a)(4);
as a
Ala.Code Ann. §
tuted a collateral consequence, the circum- he cannot serve as an official of a labor
*4
stances in
presented
ample op-
Carafas
an
union,
504;
he
U.S.C.A.
cannot obtain
§
portunity for expressing such a rule. Be-
see,
a license in
professions,
e.g.,
various
not, however,
cause it did
we refuse to
(physician’s
Ala.Code Ann.
34-24-35
§
effectively
sanction a rule that would
abro-
license
upon
revokable
conviction of felo
gate
meaning
the
and purpose underlying
ny);
subject
and he is
to enhanced sentenc
the requirement
proving
of
collateral conse-
if,
future,
ing
in the
he is convicted of
quences.
another crime.2
Ann.
Ala.Code
13A-5-9.
§
Inasmuch as
his
offender status Malloy contends, however,
that
the lan
has already deprived him of all those civil guage from Sibron allows him to assert that
liberties he would have otherwise lost as a
may
he
pardon
seek a
for his offenses from
conviction,
challenged
Malloy
result of the
governor
the
or seek financial aid for his
point
any
concedes that he cannot
to
actual
family from the
government,
state
and this
presently flowing
harms
forgery
from his
forgery conviction could be considered in
claims, however,
conviction. He
that he determining
government
whether
officials
need not prove
legal
the existence of actual
requests.
either of
these
consequences, but
that
the state has the
types
penalties
These are not the
civil
of
of establishing
any possi-
burden
the lack of
in
reading
discussed
Carafas and our
of
of
bility
consequences Malloy
collateral
to
considerably
Sibron
narrower than Mal
stemming
forgery
from the
conviction. Ab-
loy’s.
interpret
simply
We
to mean
Sibron
contends,
sent such a demonstration he
the
possi
that
the state must show that no
case is not
support
moot. He finds
for this
imposition
bilities exist for the
of collateral
argument
York,
in Sibron v. New
392 U.S.
legal consequences on the basis of the chal
(1968).
88 S.Ct.
ed absent a showing that the complainant
suffers actual harm from
that he Lane, - U.S. seeks to avoid.” at
- n.13, 102 n.13, S.Ct. at 1327 71 L.Ed.2d
at 516 n.13.
For above, the reasons discussed we af- firm the order of the district court dismiss- Lynn GRINDSTAFF, Janet a minor ing Malloy’s petition. Grindstaff, Douglas friend, as next AFFIRMED. Plaintiff-Appellant, WISDOM, Judge, specially con- curring: COLEMAN, M.D., Blanche D. I concur in the result reached Defendant-Appellee. Court, because, assuming that we can take No. 81-7471. judicial notice of the facts stated in foot- note 2 of majority opinion, petition- Appeals, States Court of er is now serving a life sentence without Eleventh Circuit. parole. July 1982. I York, read Sibron v. New 392 U.S. S.Ct. 20 L.Ed.2d holding as that a defendant’s prior convictions are ir-
relevant to the question of collateral conse-
quences. In Sibron the Court said:
Moreover we see no relevance in the fact Sibron is a offender.. ..
It impossible for this say Court to
what point the number of convictions on
a man’s record reputation renders his ir-
redeemable. And even if we believed
that an individual point, had reached that