48
Thomas, J., dissenting
had yet to commence might prevent stale claims from being brought years after the crime and trial. Peyton, supra, at 62-63. Recognizing that the first reason for finding the petitioners in Peyton "in custody" is not present here (and indeed may cut against the majority's conclusion), the Court relies on the second ground, namely, that a prisoner serving time under consecutive sentences "is 'in custody' under any one of them" for purposes of § 2241(c)(3). Ante, at 45 (some internal quotation marks omitted) (quoting 391 U. S., at 67).1
In my view, Peyton ought to be construed as limited to situations in which a habeas petitioner challenges a yet unexpired sentence. This would satisfy Peyton's policy concerns by permitting challenges to unserved sentences at an earlier time. More importantly, this interpretation would also make sense of the Court's proper insistence in Maleng v. Cook, 490 U. S. 488 (1989), that the habeas statute does not permit prisoners to challenge expired convictions. See id., at 490-491 ("We have interpreted the statutory language as requiring that the habeas petitioner be 'in custody' under the conviction or sentence under attack at the time his petition is filed"). The majority, however, relies upon broad language in one opinion to ignore language in another.2 Given
1 The Court argues that because Mississippi "views consecutive sentences in the aggregate for various penological purposes," that fact somehow "reveals the difficulties courts and prisoners would face trying to determine when one sentence ends and a consecutive sentence begins." Ante, at 46, n. 5. We face many difficulties in interpreting statutes. Those difficulties should not lead us to conclude that petitioner was "in custody" any more than they should lead us to decide that he was not "in custody."
2 I recognize that Peyton's concluding paragraph enunciated a broad "hold[ing]." 391 U. S., at 67. Other language in the opinion suggests a narrower holding, however. See id., at 64-65 (prisoners are in custody "if any consecutive sentence they are scheduled to serve was imposed as the result of a deprivation of constitutional rights") (emphasis added). Maleng, itself, described Peyton's holding as permitting a prisoner "who was serving two consecutive sentences imposed . . . [to] challenge the second sentence which he had not yet begun to serve." 490 U. S., at 493 (emphasis added).
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