Wardell v. Executive Director, Colorado Department of Corrections

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS April 29, 2014
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
WENDEL ROBERT WARDELL, JR.,
Petitioner–Appellant,
v. No. 13-1339
(D.C. No. 1:13-CV-00037-LTB)
EXECUTIVE DIRECTOR, Colorado (D. Colo.)
Department of Corrections; ARCHIE B.
LONGLEY, Warden; ATTORNEY
GENERAL OF THE STATE OF
COLORADO,
Respondents–Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY*
Before LUCERO, McKAY, and MURPHY, Circuit Judges.
Petitioner Wendel Wardell, a state prisoner proceeding pro se, seeks a certificate of
appealability to appeal the district court’s denial of his § 2254 habeas petition. Petitioner
filed this § 2254 petition in January 2013 to challenge his 1996 Colorado convictions for
theft and forgery. Petitioner’s sentence for these convictions expired when he was
released on parole in 2004, and his sentence was fully discharged in 2008. Because
Petitioner’s sentence was discharged more than four years before he filed his federal
*
This order is not binding precedent except under the doctrines of law of the case,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.
habeas petition, the district court concluded it lacked jurisdiction to entertain the petition
based on the “custody” requirement of § 2254(a). The court dismissed the action for lack
of jurisdiction.
Petitioner contends he satisfies the custody requirement because he is currently in
custody in a federal prison on a federal sentence that was ordered to run consecutively to
any sentence previously imposed. However, the district court clearly explained why this
argument is incorrect, with citation to applicable legal authorities. See, e.g., Brown v.
Warden, 315 F.3d 1268 (10th Cir. 2003) (rejecting essentially the same argument in a
similar case). Reasonable jurists would not debate the district court’s resolution of this
case. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
We accordingly DENY Petitioner’s request for a certificate of appealability and
DISMISS the appeal. Petitioner’s motion to proceed in forma pauperis on appeal is
GRANTED.
ENTERED FOR THE COURT
Monroe G. McKay
Circuit Judge
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