UNITED STATES COURT OF APPEALS TENTH CIRCUIT
BOBBI LOUAINE PARKER, Petitioner – Appellant,

v. RICHARD DARBY, District Judge of Greer County, Oklahoma; E. SCOTT PRUITT, Oklahoma A ttorney General, Respondents – Appellees. No. 14-6209 (D.C. No. 5:13-CV-01295-R) (W.D. Okla.)

ORDER AND JUDGMENT 

Before LUCERO , TYMKOVICH , and PHILLIPS , Circuit Judges.
On September 21, 2011, an Oklahoma state court jury convicted Bobbi Parker of assisting a prisoner to escape, a felony. The district court of Greer County, Oklahoma, sentenced her to one year in prison, and she was released on April 5, 2012. On December 19, 2013, she filed a petition under 28 U.S.C. § 2254 seeking a writ of habeas corpus. Despite her discharge from custody, Parker argued to the district court that, for reasons spelled out below, she remained “i n custody” because her conviction subjected her to “severe restraints on her individual liberty.” The district court disagreed and



###  After examining the briefs and the appella te record, this panel has determined unanimously that oral argument would not mate rially assist this a ppeal, so the case is ordered submitted with out oral argument. See Fed. R. App. P. 34( a)(2); 10th Cir. R. 34.1(G). This order and judgment is not binding precedent except under the doctrines of law of the case, claim preclusion, and issue pr eclusion. It may be cited, however, for its persuasive value consistent with Federal Rule of Appella te Procedure 32.1 and Tenth Circuit Rule 32.1. FILED United States Court of Appeals Tenth Circuit 

### April 10, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - concluded that it lacked jurisdiction over Pa rker’s petition because sh e failed to establish that she was “in custody” as require d by § 2254. It dismissed her petition, and Parker appeals. Although unacknowledged by Pa rker, she must obtain a ce rtificate of appealability before she may proceed with her appeal. Unless we issue a certificate of appealability, “an appeal may not be taken . . . [from] the final order in a habeas corpus proceeding in which the detention complained of arises out of a process issued by a State court . . . .” 28 U.S.C. § 2253(c)(1). Section 2254 states that fe deral courts “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to a 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.” 28 U.S.C. § 2254(a) (emphasis added). For substantially the same reasons as the district court, we conclude that Parker has failed to show that she is “ in custody in violation of the Constituti on or laws or treaties of the United States.” 28 U.S.C. § 2254 (emphasis added); see also Broomes v. Ashcroft , 358 F.3d 1251, 1254 (10th Cir. 2004) (denying a certificate of appealability because the petitioner could not demonstrate that he was in custody), abrogated on other grounds by Padilla v. Kentucky , 559 U.S. 356 (2010). We theref ore deny her a certificate of appealability. The “in custody” language of § 2254 is jurisdictional a nd requires habeas petitioners to be “in custody” under the conviction or sentence under attack when th ey file the petition. Mays v. Dinwiddie , 580 F.3d 1136, 1138–39 (10th Cir. 2009). The petitioner must satisfy the in-custo dy requirement when she files the habeas action. Spencer v.- 3 - Kemna , 523 U.S. 1, 7 (1998). In doi ng so, a petitioner need not be incarcerated to satisfy the in-custody requirement. Mays , 580 F.3d at 1139; see also Calhoun v. Attorney Gen. of Colorado , 745 F.3d 1070, 1073 (10th Cir. 2014) (citing Maleng v. Cook , 490 U.S. 488, 491 (1989)). For example, a petitioner can es tablish the in-custody requirement if the conviction has severely restra ined her individual liberty. Calhoun , 745 F.3d at 1073 (citing Hensley v. Mun. Court , 411 U.S. 345, 351 (1973)). To show a severe restraint on her individual liberty sufficient to qualify as being “in custody,” Parker offers: (1) she must pay $100.00 each month towa rd the costs imposed by her judgment and sentence; (2) she faces inca rceration if she fails to pay; (3) she has lost the right to vote; (4) she has lost the right to run for of fice; and (5) she cannot obtain employment as a grade school teacher, he r occupation before her conviction. The payment of restitution or fines, withou t more, does not qualify as a significant restraint on liberty. Erlandson v. Northglenn Mun. Court , 528 F.3d 785, 789 (10th Cir. 2008). Further, the threat of fu ture incarceration is insufficie nt to satisfy the requirement that the petitioner be currently in custody. See c.f. Calhoun , 745 F.3d at 1074 (holding that the future threat of in carceration for registrants who fail to comply with the sexoffender registration statutes is insufficient to satisfy the custody requirement). Finally, the rest of Parker’s listed restraints ar e only collateral conseq uences of her earlier conviction and, without more, are not sufficient to render an individual “in custody.” Maleng , 490 U.S. at 492; Calhoun , 745 F.3d at 1073–74. Even considering all of these restraints together, we conclude that Parker has failed to establish a sufficiently severe restraint on her liberty to satisfy the “in custody” requirement.- 4 - Accordingly, we conclude that Parker is not currently “in custody pursuant to a judgment of a State court,” and we declin e to issue a certificate of appealability.

ENTERED FOR THE COURT
Gregory A. Phillips Circuit Judge