Turley vs. Estep

Filing 920070129

Opinion

United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS TENTH CIRCUIT

F I L E D

January 29, 2007
Elisabeth A. Shumaker Clerk of Court

V ER NO N JO SEPH TU RLEY , Petitioner-A ppellant, v. AL ESTEP, Limon Correctional Facility, Warden; C OLO RA D O ATTO RN EY G ENERAL, Respondents-Appellees. No. 06-1341 (D. Colorado) (D.C. No. 06-CV-00372-ZLW )

OR D ER AND JUDGM ENT *

Before M U RPH Y, SE YM OU R , and M cCO NNELL, Circuit Judges.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Proceeding pro se, Vernon J. Turley seeks a certificate of appealability ("COA") so he can appeal the district court's dismissal of the habeas petition he

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

*

filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing no appeal may be taken from a final order disposing of a § 2254 petition unless the petitioner first obtains a COA). In his petition, filed on M arch 3, 2006, Turley attacks the validity of a 1976 Colorado conviction for conspiracy to commit burglary, alleging (1) his rights to due process and equal protection were violated because the trial court did not advise him of the consequences of his guilty plea, (2) his First Amendment right to access the courts was violated because the court's actions caused him to relinquish his right to file a direct appeal, and (3) the sentence he received exceeded the sentence set forth in the plea agreement. The petition was referred to a magistrate judge w ho ordered Turley to show cause as to why it should not be dismissed as untimely. See 28 U.S.C. § 2244(d) (setting forth a one-year statute of limitations for § 2254 applications); Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (holding prisoners w hose state convictions became final prior to the enactment of the Antiterrorism and Effective Death Penalty Act have one year from April 24, 1996, to file a federal habeas petition). Turley responded to the show cause order, arguing a post-conviction motion he filed in a different matter tolled the one-year limitation period applicable to the 1976 conviction. See 28 U.S.C. § 2244(d)(2) ("The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be -2-

counted toward any period of limitation under this subsection."). The district court considered Turley's argument but dismissed his petition as untimely. After reviewing the record in this case, we conclude we do not have jurisdiction to consider Turley's § 2254 application. Turley asserts he was sentenced to an indeterminate term of one-to-five years' incarceration on the 1976 conviction he seeks to attack in this habeas matter. Because the sentence he received for the 1976 conviction has expired, Turley is no longer "in custody pursuant to the judgment of a State court." 28 U.S.C. § 2254(a); M aleng v. Cook, 490 U.S. 488, 492 (1989) (stating a § 2254 habeas petitioner whose sentence has expired is no longer "in custody" for that conviction, even if it was used to enhance his current sentence); see also Lackawanna County Dist. Attorney v. Coss, 532 U.S. 399, 401 (2001) ("[Petitioner] is no longer serving the sentences imposed pursuant to his [prior state] convictions, and therefore cannot bring a federal habeas petition directed solely at those convictions."). Accordingly, we grant Turley's request for a COA, grant the motion to proceed in forma pauperis, and dismiss the appeal for lack of jurisdiction. W e remand to the district court with instructions to vacate its judgment and dismiss the matter for lack of jurisdiction. ENTERED FOR THE COURT

M ichael R. M urphy Circuit Judge -3-