Cite as: 515 U. S. 39 (1995)
Opinion of the Court
tion (following state-court proceedings) after prison time had run on the marijuana sentence, Mississippi urges that Maleng v. Cook, 490 U. S. 488 (1989) (per curiam), rather than Peyton, controls.
The question presented in Maleng was "whether a habeas petitioner remains 'in custody' under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted." 490 U. S., at 492. We held that the potential use of a conviction to enhance a sentence for subsequent offenses did not suffice to render a person "in custody" within the meaning of the habeas statute. Ibid.
Maleng recognized that we had "very liberally construed the 'in custody' requirement for purposes of federal habeas," but stressed that the Court had "never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction." Ibid. "[A]lmost all States have habitual offender statutes, and many States provide . . . for specific enhancement of subsequent sentences on the basis of prior convictions," ibid.; hence, the construction of "in custody" urged by the habeas petitioner in Maleng would have left nearly all convictions perpetually open to collateral attack. The Maleng petitioner's interpretation, we therefore commented, "would read the 'in custody' requirement out of the statute." Ibid.4
Unlike the habeas petitioner in Maleng, Garlotte is serving consecutive sentences. In Peyton, we held that "a prisoner serving consecutive sentences is 'in custody' under any one of them" for purposes of the habeas statute. 391 U. S.,
4 We left open the possibility, however, that the conviction underlying the expired sentence might be subject to challenge in a collateral attack upon the subsequent sentence that the expired sentence was used to enhance. Maleng, 490 U. S., at 494.
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