* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### SEP 15 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RUSSELL M. HAMPTON, Petitioner-Appellant,

v. ARISTEDES ZAVARAS, Executive Director of Colorado Department of Corrections, Respondent-Appellee. No. 00-1067 (District of Colorado) (D.C. No. 98-WM-949)

ORDER AND JUDGMENT *

Before BRORBY , KELLY, and MURPHY , Circuit Judges.

After examining Petitioner’s brief and the appellat e 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); 10th Cir. R. 34.1(G). The court therefore orders the case submitted witho ut oral argument.1 Although Hampton has not filed an application for aCOA with this court,

Hampton’s notice of appeal constitutes a request fo r a COA. **See** Fed. R. Civ. P. 22(b)(2).

2Hampton originally filed his § 2254 petition on Apr il 29, 1998. Although that petition was dismissed by the district court o n June 1, 1998, Hampton was -2- Russell M. Hampton seeks a certificate of appealabi lity (“COA”) so he can appeal the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition. 1 See 28 U.S.C. § 2253(c)(1)(A) (providing that an appeal may not be taken from the denial of a § 2254 habeas petition unless the petit ioner first obtains a COA). We agree with the district court that Hampton’s petiti on is time-barred and, therefore, decline to issue a COA. In 1979, Hampton was convicted of robbery and sente nced to an eight-year term of incarceration. Hampton’s conviction was affirmed by this court. See United States v. Hampton , 633 F.2d 927 (10th Cir. 1980). Hampton has completed the sentence imposed for the robbery conv iction. In 1984, Hampton was charged in Colorado state court with one count of sexual assault in the first degree; he was also charged with being a habitual criminal. See Colo. Rev. Stat. § 16-13-101. Hampton was convicted and sentenced t o thirty years’ imprisonment. Hampton is currently incarcerated o n the 1984 Colorado state conviction. Hampton filed the instant § 2254 habeas petition wi th the United States District Court for the District of Colorado on April 29, 1998. 2In the petition,allowed to file an amended petition and the distric t court’s order dismissing his

initial petition was vacated. -3- Hampton raised two challenges to the constitutional ity of his 1979 federal robbery conviction. He then claimed the allegedly unconstitutional 1979 federal conviction was used to enhance the sentence he rece ived for the 1984 Colorado state sexual assault conviction. Hampton’s habeas petition was referred to a United States magistrate judge who recommended that the petition be dismissed as u ntimely. The magistrate construed Hampton’s petition as a challenge to his current term of state incarceration and noted that Hampton’s 1984 Colorad o state conviction became final prior to the enactment of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and, therefore, Hampton had until April 2 3, 1997 to file a § 2254 petition. See Hoggro v. Boone , 150 F.3d 1223, 1226 (10th Cir. 1998) (holding that a state prisoner has one year from the effecti ve date of the AEDPA to file a § 2254 habeas petition but that the one-year period i s tolled by any time spent pursuing post-conviction relief in state court). H ampton’s petition was filed well after the April 23rd deadline. Hampton filed a timely objection to the magistrate’ s recommendation which the district court considered. The district court, however, rejected Hampton’s claims that the § 2254 petition is a cont inuation of issues he presented-4-

in an Application of Issuance of a Common Law Writ of Coram Nobis filed on May 7, 1987 and his argument that the one-year peri od should be equitably tolled. The district court dismissed Hampton’s hab eas petition and refused to grant him a COA. In this appeal Hampton continues to maintain that h is § 2254 petition is a challenge to his allegedly unconstitutional 1979 fe deral conviction. Challenges to federal convictions, however, must be brought pu rsuant to 28 U.S.C. § 2255, not § 2254. Compare 28 U.S.C. § 2255, with 28 U.S.C. § 2254. Hampton’s petition, however, cannot be construed as a § 2255 petition for two reasons. Hampton’s § 2255 petition would be untimely for the same reasons the district court concluded that his § 2254 petition is untimely. See United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997) (“[P]risoners whose convictions become final on or before April 24, 1996, must file their § 2255 motions before April 24, 1997.”). Additionally, Hampton cannot satisfy the “in custody” requirement of 28 U.S.C. § 2255 because he has full y completed his federal sentence. Although Hampton claims the 1979 federal conviction has been used to enhance the state sentence he is currently servi ng, a petitioner currently serving a sentence that has been enhanced by an exp ired sentence must attack the expired sentence in a habeas petition challenging the current term of incarceration. See Gamble v. Parsons , 898 F.2d 117, 118 (10th Cir. 1990).-5-

Thus, Hampton’s only avenue to challenge his 1979 f ederal conviction is a § 2254 petition. However, as the district court prop erly concluded, Hampton’s § 2254 petition is untimely. Hampton is not entitled to receive a COA unless he can make “a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). Hampton can make such a showing by dem onstrating the issues raised are debatable among jurists, a court could r esolve the issues differently, or that the questions presented deserve further proceedings. See Slack v. McDaniel , 120 S. Ct. 1595, 1603-04 (2000). Upon review of Hampton’s appellate brief and de novo review of the magistrate’s recommendation, the district court’s o rder, and the entire record on appeal, this court concludes that the district court’s ultimate conclusion that Hampton’s petition is time barred is not reasonablydebatable, subject to a-6-

different resolution on appeal, or deserving of further proceedings. Consequently, Hampton has not made a substantial sh owing of the denial of a constitutional right as required by 28 U.S.C. § 225 3(c)(2) and he is not entitled to a COA. Accordingly, we deny Hampton’s application for a COA and dismiss his appeal.

ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge