Harding v. Raemisch ( 2016 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 11, 2016
_________________________________
Elisabeth A. Shumaker
Clerk of Court
LINDSAY T. HARDING,
Petitioner - Appellant,
v. No. 16-1161
(D.C. No. 1:15-CV-02774-LTB)
RICHARD F. RAEMISCH, (D. Colorado)
CYNTHIA COFFMAN, The
Attorney General of the State of
Colorado,
Respondents - Appellees.
_________________________________
ORDER *
_________________________________
Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
_________________________________
Mr. Lindsay Harding was convicted of a misdemeanor in Colorado
state court. After completing his sentence for that conviction, he filed a
federal habeas petition. The district court ordered dismissal based on a
*
We do not believe oral argument would be helpful. As a result, we
are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).
This order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But our
order and judgment may be cited for its persuasive value under Fed. R.
App. P. 32.1(a) and 10th Cir. R. 32.1(A).
lack of jurisdiction because Mr. Harding was no longer “in custody” when
he filed this habeas action.
Mr. Harding now seeks to appeal and to avoid prepayment of the
filing fee. We can
 entertain the appeal only if the district court’s disposition
was reasonably debatable 1 and
 relieve Mr. Harding of prepayment only if he had a good-
faith basis to appeal. 2
Mr. Harding’s appeal points are not reasonably debatable, and he has not
presented a good-faith basis to appeal. As a result, we dismiss the appeal
and deny the request to avoid prepaying the filing fee.
* * *
In a habeas action brought by a state prisoner, the district court has
jurisdiction only if the prisoner is “in custody.” 28 U.S.C. § 2254(a); see
Mays v. Dinwiddie, 580 F.3d 1136, 1138-39 (10th Cir. 2009) (stating that
the custodial requirement is jurisdictional). A habeas petitioner is no
longer “in custody” under a conviction if the sentence has “fully expired.”
Maleng v. Cook, 490 U.S. 488, 492 (1989).
1
28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
2
28 U.S.C. § 1915(a)(3); Rolland v. Primesource Staffing, LLC, 497
F.3d 1077, 1079 (10th Cir. 2007).
2
In November 2008, Mr. Harding was convicted of the misdemeanor
that he challenges in this habeas action. Mr. Harding completed the
sentence in May 2010 for this misdemeanor conviction.
In June 2010, Mr. Harding was convicted of multiple felony charges
and was sentenced to a lengthy prison term in an unrelated case.
In December 2015, Mr. Harding filed this habeas petition,
challenging his November 2008 misdemeanor conviction. But because his
sentence had expired in May 2010, Mr. Harding was no longer “in custody”
for his misdemeanor conviction. See Maleng v. Cook, 490 U.S. 488, 492
(1989).
Mr. Harding could be considered “in custody” if his second sentence
had run consecutively with his first sentence. Garlotte v. Fordice, 515 U.S.
39, 45-46 (1995). But Mr. Harding’s second sentence did not run
consecutively with his first sentence; his first sentence expired in May
2010, and his second sentence was not imposed until the following month.
Though Mr. Harding was no longer serving the sentence for the
misdemeanor when he sought habeas relief, he insists that he is actually
innocent of the charge. But Mr. Harding did not present this argument in
district court when ordered to address jurisdiction. As a result, the district
court cannot be faulted for failing to consider the claim of actual
innocence. See Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004)
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(declining to consider an appeal point raised for the first time in a request
for a certificate of appealability).
In these circumstances, all reasonable jurists would conclude that the
habeas action was properly dismissed for lack of jurisdiction. Accordingly,
we (1) decline to issue a certificate of appealability and (2) dismiss the
appeal.
In addition, we require Mr. Harding to prepay the filing fee because
he has not presented a good-faith basis for the appeal. Rolland v.
Primesource Staffing, LLC, 497 F.3d 1077, 1079 (10th Cir. 2007).
Prepayment of the filing fee is required within 21 days of this order.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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