Joseph William Charlton v. E.W. Morris, Warden, Fci--Sandstone

PER CURIAM.

Joseph William Charlton, a federal inmate, appeals from the final order entered in the District Court 1

dismissing his 28 U.S.C. § 2254 petition.

In 1990, Charlton pleaded guilty to aiding and abetting the possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841 (a)(1) and 18 U.S.C. § 2 . Charl-ton was sentenced as a career offender based, in part, on a 1982 Minnesota state felony conviction.

Charlton then filed this section 2254 petition arguing his Minnesota state conviction was unconstitutional because of an erroneous jury instruction and, thus, it could not be used to enhance his federal sentence. Concluding that Charlton was “in custody” for section 2254 purposes, the District Court denied Charlton’s petition on the merits.

We conclude the District Court was without jurisdiction to address the merits of Charlton’s section 2254 petition because Charlton — who had served his state sentence and was discharged from supervised release in 1985 — was no longer “in custody” for his state conviction.

See Maleng v. Cook, 490 U.S. 488, 492 , 109 S.Ct. 1923, 1926 , 104 L.Ed.2d 540 (1989) (per curiam) (petitioner whose sentence has expired is no longer “in custody” for that conviction, even if used to enhance current sentence). Even if Charl-ton’s petition were construed as a 28 U.S.C. § 2255 motion attacking his current federal sentence, as enhanced by his state conviction, see id.

at 493-94 , 109 S.Ct. at 1926-27 , we note that he may not use such a motion to challenge his prior expired state conviction *930 on the grounds alleged.

See Partee v. Hopkins, 30 F.3d 1011, 1012 (8th Cir.1994) (inmate cannot collaterally attack a prior state conviction used to “enhance a sentence on any constitutional ground other than failure to appoint counsel for an indigent defendant”), ce rt. denied, — U.S:-, 115 S.Ct. 1135 , 130 L.Ed.2d 1096 (1995). Thus, the dismissal of Charlton’s petition was proper.

Although we do not reach the merits, we note Charlton’s Minnesota conviction appears to be constitutionally valid because the erroneous jury instruction was harmless beyond a reasonable doubt.

See Sullivan v. Louisiana, — U.S. -,-, 113 S.Ct. 2078, 2081-82 , 124 L.Ed.2d 182 (1993);

Brecht v. Abrahamson, — U.S.-,- -, 113 S.Ct. 1710, 1721-22 , 123 L.Ed.2d 353 (1993);

see also United States v. West, 28 F.3d 748, 751 (8th Cir.1994) (jury instruction reviewed within context of entire jury charge and entire trial).

The dismissal is affirmed.

1

. The Honorable David S. Doty, United States District Judge for the District of Minnesota, adopting the report and recommendation of the Honorable Raymond L. Erickson, United States Magistrate Judge for the District of Minnesota.