*

 This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata and collateral estoppel. The 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.

F I L E D

United States Court of Appeals

Tenth Circuit

APR 29 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT EARL HEATH,

Petitioner-Appellant,

v.

STEVE HARGETT,

Respondent-Appellee.

No. 97-6267

(D.C. No. 97-CV-30)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges.

After examining the briefs 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

Mr. Robert Earl Heath, a state prisoner appearing pro se , appeals the
1

 Under case No. CRF-86-451, Mr. Heath was convicted of rape in the first

degree, forcible sodomy, and burglary in the second degree. He was sentenced to

terms of imprisonment of 150, 99, and 99 years respectively, with the sentences

ordered to run consecutively. The sentences were enhanced because Mr. Heath

previously had been convicted of a felony.

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district court's order dismissing his petition for writ of habeas corpus, and the

district court's subsequent denial of his application for a certificate of

appealability. We deny Mr. Heath's request for a certificate of appealability and

dismiss the appeal.

On January 9, 1997, pursuant to 28 U.S.C. § 2254, Mr. Heath filed a

petition challenging his fully expired conviction in case No. CRF-71-2657. Under

case No. CRF-71-2657, a judgment entered March 13, 1972, Mr. Heath was

sentenced to a ten-year term of imprisonment after pleading guilty to second

degree burglary after former conviction of a felony. Though it is now expired,

Mr. Heath contends his sentence in No. CRF-71-2657 was used to "bootstrap" and

"revitalize" his conviction for robbery with a dangerous weapon in case No.

33,968, entered March 8, 1968. His conviction in case No. 33,968 was then used

as a predicate felony to enhance the sentence he is currently serving in case No.

CRF-86-451. 1 Hence, according to Mr. Heath, the enhanced sentence he is

currently serving flows from the conviction in CRF-71-2657.
2

 The Respondent in this action had filed a motion to dismiss for failing to

move for an order by the court of appeals authorizing the district court to consider

a successive habeas application. Pursuant to the magistrate judge's report, the

district court denied the Respondent's motion to dismiss.

-3-

After a thorough review of the record, the magistrate judge concluded Mr.

Heath was not "in custody" under CRF-71-2657 for purposes of meeting the

jurisdictional requirements of § 2254, and recommended his petition be

dismissed. Having conducted a de novo review of the record, including Mr.

Heath's objections to the magistrate judge's findings and proposed disposition, the

district court adopted the magistrate judge's report and dismissed the petition for

writ of habeas corpus on jurisdictional grounds. 2 Mr. Heath then applied for and

was denied a certificate of appealability.

For the district court to have jurisdiction over a § 2254 petition, the

petitioner must be "in custody" under the conviction he is challenging when the

petition is filed. Maleng v. Cook , 490 U.S. 488, 490-91 (1989) (per curiam); see

also 28 U.S.C. §§ 2241(c)(3) and 2254(a). A prisoner is precluded from

challenging an expired conviction in isolation. Gamble v. Parsons , 898 F.2d 117,

118 (10th Cir.) (interpreting Maleng ), cert. denied, 498 U.S. 879 (1990). In order

to invoke the jurisdiction of the federal district court to review an expired

conviction, a petitioner must show that his "present incarceration is based in part
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upon an earlier conviction." Collins v. Hesse , 957 F.2d 746, 748 (10th Cir. 1992). 

Even if the essence of the petitioner's attack is on the expired conviction, we may

liberally construe a habeas action as challenging the present confinement if it has

been enhanced by the expired conviction. Id. The petitioner, however, must

show that "if he prevails in challenging his prior expired conviction, the sentence

that he is currently serving will be reduced." Id. Mr. Heath fails to make this

required showing.

Mr. Heath's sentences under case No. CRF-86-451, for which he is

currently incarcerated, were enhanced under Oklahoma's habitual offender statute. 

The record indicates those enhancements were linked only to Mr. Heath's prior

felony conviction in case No. 33,968, not to his conviction in No. CRF-71-2657. 

Mr. Heath directly challenged his conviction in case No. CRF-86-451 in an earlier

habeas proceeding. The district court denied his petition, and this court affirmed

that decision. See Heath v. Cody , 83 F.3d 432, No. 96-6007, 1996 WL 221304

(10th Cir. May 2, 1996). The availability of case No. 33,968 as the basis for the

enhancement of Mr. Heath's sentence in case No. CRF-86-451 was determined in

that proceeding. Id.

While a petitioner "may argue that his present sentence is improper because
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it has been enhanced by a prior, unconstitutional conviction," Gamble , 898 F.2d at

118, Mr. Heath goes too far. Mr. Heath is in custody under case No. CRF-86-451. 

Mr. Heath's sentence in that case was enhanced by his prior felony conviction in

case No. 33,968. Mr. Heath does not challenge the constitutionality of that

conviction. Mr. Heath's current sentence was not enhanced by his conviction in

case No. CRF-71-2657, the conviction he now attacks. We find no authority

supporting Mr. Heath's attempt to meet the "in custody" requirement by attacking

a conviction twice-removed from the one for which he is currently incarcerated. 

Consequently, we do not construe his petition as attacking his present sentence.

We agree with the district court's determination that Mr. Heath is not "in

custody" and, therefore, it is without jurisdiction to consider his petition. An

appeal cannot be taken to this court in a § 2254 proceeding unless the petitioner

has obtained a certificate of appealability by making a substantial showing of the

denial of a constitutional right. See 28 U.S.C. § 2253(c)(2). Mr. Heath has failed

to make such a showing.
-6-

Accordingly, Mr. Heath's request for a certificate of appealability is

DENIED . The appeal is DISMISSED .

Entered for the Court

WADE BRORBY

United States Circuit Judge