* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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 

### MAY 23 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RANDALL D. TOMLINSON, Petitioner-Appellant, v. JAKE MENDEZ, Warden, USP Allenwood; ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents-Appellees. No. 01-1019 (D.C. No. 00-Z-1529) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , KELLY and LUCERO , Circuit Judges.

Petitioner-Appellant Randall Tomlinson (“Tomlinson” ) filed a Petition for a Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. §2254 on August 3, 2000. Tomlinson is not, however, currently in state custody but is instead currently incarcerated in a federal prison in Beaumont,1 At the time the initial Petition was filed in the district court, Tomlinson

was incarcerated in a federal prison located in Whi te Deer, Pennsylvania serving the same sentence for which he is currently incarce rated.

2 These arguments were presented to the Colorado Di strict Court for the County of El Paso in a motion for post-conviction r elief filed in September 1997, but were rejected on January 12, 1998. See State v. Tomlinson , No. 90CR2343, Division No. 3 (Colo. Dist. Ct. El Paso County, Jan . 12, 1998) (unpublished order). The Colorado Court of Appeals later affirm ed the denial of Tomlinson’s claims on their merits, see State v. Tomlinson , No. 98CA0226 (Colo. Ct. App. Nov. 4, 1999) (unpublished opinion), and certiorari was denied by the Colorado Supreme Court on April 24, 2000, see Tomlinson v. State , No. 00SC66 (Colo. Apr. 24, 2000). - 2 - Texas, serving a 300-month federal sentence for kid naping, see 18 U.S.C. 1201. 1 In his Petition, Tomlinson alleged that a Colorado state court conviction for second degree burglary, which was entered following a guilty plea in 1991 and which was used in 1994 to enhance his current feder al sentence pursuant to United States Sentencing Guidelines §4B1.1, was obt ained as the result of ineffective assistance of counsel. (See Petition at 3, 7.) Specifically, he argued that his guilty plea on the state burglary charge w as not knowing and voluntary because he was not informed by his attorney that th e state conviction could later be used to enhance a federal sentence. 2 (See id. at 5.) Tomlinson has completely served the state sentence that he presently seeks t o attack as unconstitutional, and is challenging it here based upon its use to enhanc e his current federal sentence. (See Petition at 7.)- 3 -

The federal district court denied Tomlinson’s Petit ion on November 8, 2000, finding that while Tomlinson could file a mot ion attacking the validity of the prior, expired state sentence in the context of its use to enhance his current federal sentence, only the federal district court t hat actually sentenced Tomlinson on the federal charges had jurisdiction to hear suc h a motion. See Tomlinson v. Mendez, et al. , No. 00-ES-1529, slip op. at 3 (D. Colo. Nov. 8, 2 000) (unpublished order) (citing Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996)). Because Tomlinson’s federal sentence was i mposed by a federal district court in Lincoln, Nebraska, the jurisdiction in whi ch he was both indicted for and pled guilty to the kidnaping charge, the district c ourt determined that it was “not a proper forum for Mr. Tomlinson’s challenge to the v alidity of his federal sentence.” Id. Tomlinson then filed a request for a certificate of appealability (“COA”) and for leave to proceed on appeal in forma pauperi s, both of which were rejected by the district court. Subsequently, Tomlinson fil ed with this court another request for a COA and for permission to proceed on appeal in forma pauperis. Because the Petition was filed after April 24, 1996 , the effective date of the Antiterrorism and Effective Death Penalty Act (“AED PA”), AEDPA’s provisions apply to this case. See, e.g. , Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999) (citing Lindh v. Murphy , 521 U.S. 320, 336 (1997)). Under the- 4 -

provisions of AEDPA, a state prisoner appealing a d istrict court’s denial of habeas relief under §2254 must obtain a COA before we may consider the merits of his claim. See 28 U.S.C. §2253(c)(1)(A), (B). A court may issue a COA “only if the applicant has made a substantial showing of a denial of a constitutional right.” See 28 U.S.C. §2253(c)(2). Because the district courtdenied Petitioner’s COA, we must first decide whether to issue Petition er’s requested COA before we may address his claims on the merits. See United States v. Simmonds , 111 F.3d 737, 740-41 (10th Cir. 1997). After reviewing the record in this case, we have de termined that we do not have jurisdiction to consider Tomlinson’s §2254 Pet ition and that Petitioner’s request for a COA must therefore be denied. Section 2254 states that the federal courts “shall entertain an application for a writ of habeas corpus in behalf of a person i n custody pursuant to a judgment of a State courtonly on the ground that he is in custodyin violation of the Constitution or laws or treaties of the United States.” See 28 U.S.C. §2254(a) (emphasis added). Tomlinson is not currently “in c ustody pursuant to a judgment of a State court,” but is instead in federal custody pursuant to a judgment of the federal district court in Lincoln, Nebraska. He is therefore not entitled to federal habeas relief under §2254 because he has not satisf ied the custodial prerequisite necessary to confer jurisdiction under that statute . See Charlton v. Morris , 53- 5 -

F.3d 929, 929 (8th Cir. 1995) (holding that a feder al prisoner currently serving a federal sentence which had been enhanced by an expi red, prior state court conviction “was no longer ‘in custody’ for his stat e conviction” and therefore could not obtain habeas relief pursuant to §2254) ( citing Maleng v. Cook , 490 U.S. 488, 492 (1989) (per curiam) (stating that a § 2254 habeas petitioner whose sentence has expired is no longer “in custody” for that conviction, even if it was used to enhance his current sentence)). It is true that we are obligated to construe pro se filings liberally, see Haines v. Kerner , 404 U.S. 519, 520 (1972), and that it might be po ssible for us to recharacterize Tomlinson’s Petition as one brought under 28 U.S.C. §2255 since he is currently in federal custody, see Ryan v. United States , 214 F.3d 877, 884 (7th Cir. 2000) (Wood, J., dissenting) (“[The defen dant] is a federal prisoner ‘in custody’ under a federal sentence [which was enhanc ed based upon a challenged state conviction]. His complaint pertains to the l ength of that sentence, which means the statute he can and must use [to challenge the sentence] is §2255.”). We nevertheless decline to recharacterize the Petit ion in that manner for two reasons. First, we have generally disfavored the r echaracterization of non-§2255 motions filed by prisoners as §2255 motions, even w here the prisoner may be entitled to relief under §2255 but is clearly not e ntitled to relief under whatever cause of action he has asserted, because of the con cern that such3 We also note that Tomlinson would not be entitled to relief under §2255

from this court in any event because a §2255 Petiti on challenging the legality of a federal prisoner’s sentence must be filed with the same district court that imposed the sentence under attack. See 28 U.S.C. §2255 (“A prisoner in custody under sentence of a court established by an Act of Congre ss claiming the right to be released upon the ground that the sentence was impo sed in violation of the (continued...) - 6 - recharacterization might inadvertently result in a waiver of the prisoner’s other claims for habeas relief. See United States v. Kelly , 235 F.3d 1238, 1242 (10th Cir. 2000) (“[W]e have declined to construe a pro s e Rule 32 motion as a §2255 motion where it was clear the defendant did not int end his motion to be so construed, largely out of concern that a subsequent§2255 motion would be considered successive.”); United States v. Miller , 197 F.3d 644, 649 (3d Cir. 1999) (“With AEDPA in place, the practice of libera lly construing postconviction motions as §2255 petitions can, in the absence of cautionary or educational measures, impair the ability of inmates to challenge their convictions on collateral review.”). Second, and more importan t, even if Tomlinson’s Petition were recharacterized as a §2255 petition rather tha n a §2254 petition, he would not be entitled to relief due to the Supreme Court of the United States’ recent opinion in Daniels v. United States , __ U.S. __, __, 121 S. Ct. 1578, 1584 (2001), in which the Court held that §2255 may not be used to collaterally attack an expired state conviction that was used to enhance afederal prisoner’s current federal sentence. 33 (...continued)

Constitution or laws of the United States . . . maymove the court which imposed the sentence to vacate, set aside or correct the sentence.”) (e mphasis added). Here, Tomlinson filed his Petition with the United States District Court for the District of Colorado, which was not the court that imposed the sentence to which Tomlinson is presently objecting.

4 Prior to the Court’s decisions in Daniels and in Lackawanna County Dist. Attorney v. Coss , __ U.S. __, __, 121 S. Ct. 1567, 1569 (2001) (ext ending the holding in Daniels to preclude state prisoners’ collateral attacks un der §2254 to expired state convictions used to enhance their current state sentences), the Tenth Circuit had allowed prisoners to collaterally attac k prior, expired state convictions that had been used to enhance sentences under whichthe petitioner was currently incarcerated. See Collins v. Hesse , 957 F.2d 746, 747 (10th Cir. 1992) (petition under §2241); Gamble v. Parsons , 898 F.2d 117, 118-19 (10th Cir. 1990) (petition under §2254). - 7 - For the foregoing reasons, we find that Tomlinson h as not “made a substantial showing of a denial of a constitutional right” and thus decline to issue a COA in this case. Given the recency of the Supre me Court’s Daniels opinion foreclosing relief under §2255, 4 however, we find that Tomlinson’s Petition was not frivolous and therefore grant Tomlinson’s motio n to proceed on appeal in forma pauperis despite our decision to deny a COA i n this case. This appeal is DISMISSED.
ENTERED FOR THE COURT

David M. Ebel Circuit Judge