After examining the brief 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. 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. 

F I LED

United States Court of Appeals

Tenth Circuit

July 2, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BENNIE WREN BOLTON,

Petitioner - Appellant, No. 07-5037

v. (N. D. Oklahoma)

EL RENO FEDERAL

CORRECTIONAL INSTITUTION;

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Respondents - Appellees.

(D.C. No. 05-CV-394-TCK-SAJ)

ORDER*

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Bennie W. Bolton, an inmate in federal custody, seeks a certificate of

appealability (COA) to appeal the denial by the United States District Court for

the Northern District of Oklahoma of his application for relief under 28 U.S.C.

§ 2254. See 28 U.S.C. § 2253(c)(1)(b) (requiring COA to appeal denial of § 2254
-2-

application). The district court denied the application as untimely under

28 U.S.C. § 2244(d)(1). But because the district court had no jurisdiction to

consider Mr. Bolton’s application, we vacate the judgment below and remand

with instructions to dismiss the application without prejudice.

Mr. Bolton’s application stated that he had pleaded guilty in Oklahoma

state court to four armed robberies; that his convictions were not directly

appealed; that he had repeatedly sought postconviction relief; and that in 1978 his

sentence had been reduced from four 45-year sentences to four 15-year sentences. 

The application and supporting brief sought to challenge the validity of these

convictions on the grounds that he had not voluntarily entered his guilty pleas,

that he was convicted in violation of the Fourteenth Amendment because of his

status as a minor, that he was denied effective assistance of counsel, that several

judges in his postconviction state proceedings should have recused themselves,

and that his pleadings in those proceedings should have been interpreted more

liberally. These convictions were evidently used to enhance his sentence for a

1988 federal conviction under 18 U.S.C. § 922(g)(1).

Whatever the merits of Mr. Bolton’s claims, he cannot seek relief under

§ 2254. The record clearly indicates that he long ago completed service of the

challenged state convictions. Section 2254 is available only to “a person in

custody pursuant to the judgment of a State court.” § 2254(a). It is not enough

that the state conviction may have affected a federal sentence currently being
-3-

served. As we have stated: “A prisoner who has completely served his state

sentence is not entitled to habeas relief under § 2254 even if the state sentence

affected the calculation of his federal sentence. Accordingly, the district court

lacked jurisdiction to entertain [the applicant’s] § 2254 petition.” Brown v.

Warden, Springfield Med. Ctr. for Fed. Prisoners, 315 F.3d 1268, 1270 (10th Cir.

2003) (citations omitted).

Even if we were to interpret Mr. Bolton’s application as a motion for relief

under § 2255, the district court would have had no jurisdiction to entertain it. As

the district court noted, Mr. Bolton had previously filed a § 2255 motion

challenging the federal sentence. Therefore, this motion would be barred as a

“second or successive” petition. See § 2255 ¶ 8. A “second or successive”

§ 2255 motion must be certified by an appellate panel before it can be addressed

by a district court. See Gonzalez v. Crosby, 545 U.S. 524, 529–31 (2005); United

States v. Nelson, 465 F.3d 1145, 1147 (10th Cir. 2006). We could construe

Mr. Bolton’s pleading in this court as an implied application to file a successive

§ 2255 motion in the district court, see United States v. Gallegos, 142 F.3d 1211,

1212 (10th Cir. 1998); but we can certify a successive motion only if its claims

rely on either “(1) newly discovered evidence that, if proven and viewed in light

of the evidence as a whole, would be sufficient to establish by clear and

convincing evidence that no reasonable factfinder would have found the movant

guilty of the offense; or (2) a new rule of constitutional law, made retroactive to
-4-

cases on collateral review by the Supreme Court, that was previously

unavailable.” § 2255 ¶ 8; see also Coleman v. United States, 106 F.3d 339, 340

(10th Cir. 1997). Mr. Bolton has made no argument and provided no facts to

suggest that he meets either requirement. Therefore, we refuse to certify his

pleading as a proper successive motion.

Accordingly, we VACATE the judgment below and REMAND with

instructions to dismiss Mr. Bolton’s application for lack of jurisdiction.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge