*This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.
Mr. Robert Earl Heath, a state prisoner appearing pro se , appeals the1 Under case No. CRF-86-451, Mr. Heath was convicte d of rape in the first

degree, forcible sodomy, and burglary in the seconddegree. He was sentenced to terms of imprisonment of 150, 99, and 99 years resp ectively, with the sentences ordered to run consecutively. The sentences were e nhanced because Mr. Heath previously had been convicted of a felony.
-2- district court's order dismissing his petition for writ of habeas corpus, and the district court's subsequent denial of his applicati on for a certificate of appealability. We deny Mr. Heath's request for a c ertificate of appealability and dismiss the appeal.
On January 9, 1997, pursuant to 28 U.S.C. § 2254, M r. Heath filed a petition challenging his fully expired conviction i n 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 dang erous weapon in case No. 33,968, entered March 8, 1968. His conviction in c ase 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 sente nce he is currently serving flows from the conviction in CRF- 71-2657.2The Respondent in this action had filed a motion to dismiss for failing to

move for an order by the court of appeals authorizi ng the district court to consider a successive habeas application. Pursuant to the m agistrate judge's report, the district court denied the Respondent's motion to di smiss.
-3- After a thorough review of the record, the magistrate judge concluded Mr. Heath was not "in custody" under CRF-71-2657 for pu rposes of meeting the jurisdictional requirements of § 2254, and recommen ded his petition be dismissed. Having conducted a de novo review of the record, including Mr. Heath's objections to the magistrate judge's findin gs and proposed disposition, the district court adopted the magistrate judge's report and dismissed the petition for writ of habeas corpus on jurisdictional grounds. 2Mr. 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 convictio n 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 i s 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-4-

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 o n the expired conviction, we may liberally construe a habeas action as challenging t he 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, fo r which he is currently incarcerated, were enhanced under Oklahom a'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 co nviction in No. CRF-71-2657. Mr. Heath directly challenged his conviction in cas e No. CRF-86-451 in an earlier habeas proceeding. The district court denied his p etition, 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 sent ence is improper because-5-

it has been enhanced by a prior, unconstitutional conviction," Gamble , 898 F.2d at 118, Mr. Heath goes too far. Mr. Heath is in custo dy under case No. CRF-86-451. Mr. Heath's sentence in that case was enhanced by h is 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 e nhanced 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 cust ody" requirement by attacking a conviction twice-removed from the one for which h e is currently incarcerated. Consequently, we do not construe his petition as attacking his present sentence.
We agree with the district court's determination th at Mr. Heath is not "in custody" and, therefore, it is without jurisdictionto consider his petition. An appeal cannot be taken to this court in a § 2254 pr oceeding unless the petitioner has obtained a certificate of appealability by maki ng 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