Free USCA Order Terminating Appeal - District Court of Delaware - Delaware

Case 1:06-cv-00758-JJF

Document 9

Filed 07/27/2007

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HLD-122

(July 2007)

July 13, 2007

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT C.A. No. 07-1627 DONALD F. BASS vs. WARDEN THOMAS L. CARROLL, ET AL. (D. DEL. CIV. NO. 06-CV-00758) Present: SCIRICA, CHIEF JUDGE, WEIS and GARTH, CIRCUIT JUDGES Submitted is appellant's application for a certificate of appealability under 28 U.S.C. § 2253(c)(1) in the above-captioned case. Respectfully, Clerk ORDER The foregoing application for a certificate of appealability is denied for failure to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To the extent that appellant meant to challenge his 1998 convictions, the December 11, 2006 habeas corpus petition is successive and requires authorization from an appeals court before the District Court may exercise jurisdiction, as explained by the District Court. To the extent that appellant challenged only the 1985 conviction for escape, the habeas corpus petition also properly was dismissed for lack of jurisdiction. A petitioner must be "in custody" at the time a habeas petition is filed. 28 U.S.C. § 2254(a); Maleng v. Cook, 490 U.S. 488, 490 (1989). If a sentence has fully expired, the petitioner

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Case 1:06-cv-00758-JJF

Document 9

Filed 07/27/2007

Page 2 of 2

is no longer "in custody;" the petitioner satisfies the custody requirement only by directly attacking a sentence he is currently serving. Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 401-02 (2001). Appellant's 1985 sentence of six months for second degree escape had fully expired before he filed the instant petition. By the Court, s/WEIS United States Circuit Judge
A True Copy :

Marcia M . Waldron, Clerk

Dated: July 27, 2007 ISC/cc: Donald F. Bass Loren C. Meyers, Esq.

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