Johnson v. Hemingway, 10th Cir. (2003)
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UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
United States Court of Appeals
Tenth Circuit
FEB 14 2003
PATRICK FISHER
Clerk
TIMOTHY LAMONT JOHNSON,
Petitioner - Appellant,
v.
JOHN R. HEMINGWAY, Warden;
PHILL KLINE, Attorney General of
Kansas,
No. 02-3214
D.C. No. 01-CV-3478-DES
(D. Kansas)
Respondents - Appellees.
ORDER AND JUDGMENT *
Before KELLY, McKAY, and MURPHY, Circuit Judges. **
Petitioner-appellant Timothy Lamont Johnson seeks a certificate of
appealability (COA) pursuant to 28 U.S.C. 2253(c) to challenge the district
courts dismissal of his petition for a writ of habeas corpus for lack of
jurisdiction. The district court dismissed Johnsons petition because he was no
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
*
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
**
longer in state custody as required by 28 U.S.C. 2254. We conclude that the
district court lacked jurisdiction over Johnsons petition, deny a COA, and
dismiss the appeal.
In 1993, Petitioner pled guilty to state charges of cocaine possession and
obstruction. Petitioner filed a motion in 1999 to withdraw his guilty plea based
upon an alleged deficiency in the state courts receipt of the plea. The Kansas
district court denied the motion, and the Kansas appellate courts affirmed.
Johnson completed his state sentence and is now in federal custody. On
December 12, 2001, Johnson filed a petition for a writ of habeas corpus pursuant
to 28 U.S.C. 2254, challenging his prior state conviction. In his 2254
petition, Johnson claimed that the state courts erred in denying his motion to
withdraw his plea. Although Johnson was no longer in state custody when his
2254 petition was filed, he claimed that he could still attack the state conviction
because it affected his current federal sentence. The district court dismissed the
case for lack of jurisdiction.
The Antiterrorism and Effective Death Penalty Act (AEDPA) provides
that a challenge to detention arising from a state court decision may not be
appealed unless a COA is granted. 28 U.S.C. 2253(c)(1)(A). A COA may be
issued only if the applicant has made a substantial showing of the denial of a
constitutional right. 2253(c)(2). Because the district court denied Johnson's
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motion for a COA, we proceed to analyze whether a COA should have been
granted.
Under 2254, this court shall entertain an application for a writ of habeas
corpus in behalf of a person in custody pursuant to the judgment of a State court
only on the ground that he is in custody in violation of the Constitution or laws or
treaties of the United States. 2254(a). Petitioner has completely served his
state sentence, and thus he is no longer in custody pursuant to the judgment of a
State court. A prisoner who has completely served his state sentence is not
entitled to habeas relief under 2254 even if, as Johnson summarily alleges here,
R. Doc. 2 at 2, the state sentence affected the calculation of his federal sentence.
Brown v. Warden, F.3d, 2003 WL 23119, at *1 (10th Cir. Jan. 2, 2003). The
only exception to this rule is where a prior conviction is challenged for failure to
appoint counsel, see Custis v. United States, 511 U.S. 485, 496-97 (1994), but
Petitioner makes no such claim here. Accordingly, the district court lacked
jurisdiction to entertain Johnson's 2254 petition.
There is insufficient information in this petition to recharacterize it as a 28
U.S.C. 2255 petition, even under the obligation to construe pro se filings
liberally. See Brown, 2003 WL 23119, at *2. We have no reason, apart from
Petitioners passing assertion, to believe that the prior state conviction was used
to increase Petitioners federal sentence. Indeed, it is unclear from the briefs
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submitted or the record before us why Petitioner is in federal custody.
The application for COA is DENIED and the appeal is DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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