*After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral argument. SeeFed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel.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 

### OCT 2 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

THOMAS HOWARD GILBREATH, Petitioner-Appellant,

v. RON WARD, Warden, Oklahoma State Penitentiary, Respondent- Appellee. No. 97-6010 (D.C. No. 96-CV-1234) (W.D. Okla.)

No. 97-6011 (D.C. No. 96-CV-1238) (W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , EBEL and KELLY , Circuit Judges.

Appellant Gilbreath (“Gilbreath”) is serving a 101 -year state sentence for robbery with a deadly weapon and is subject to a co nsecutive 5-year state1 Gilbreath has an additional 1-year sentence he must serve consecutively, as well

as a 71-month federal sentence to be served consecutive to his state sentences. Gilbreath does not argue the validity of these convictions here. - 2 - sentence for uttering a forged instrument. 1 Gilbreath brings two petitions for writ of habeas corpus under 28 U.S.C. § 2254 to cha llenge his forged instrument conviction. Specifically, Gilbreath claims that th e trial court improperly enhanced his sentence in part on the basis of two p rior convictions that were violative of his Sixth and Fourteenth Amendment rig hts. He also alleges that one of the two prior convictions was void for lack of s ubject matter jurisdiction. Below, the magistrate judge and the district court found that because Gilbreath is no longer “in custody” for the two pri or convictions of which he complains he cannot request relief under 28 U.S.C. § 2254. In order for a prisoner to seek relief under § 2254 the prisoner m ust satisfy the reviewing court that the prisoner is “in custody” due to the convic tion that he appeals. “In custody” can take one of two forms: either the pris oner must be serving or facing a sentence imposed in the course of that conviction , see Maleng v. Cook , 490 U.S. 488, 490-92 (1989), or the prisoner must show that his sentence for another conviction was enhanced by the conviction he seeks to attack, see Gamble v.
Parsons , 898 F.2d 117, 118 (10th Cir. 1990). Here, the two convictions Gilbreath challenges were imposed in 1973, for second degree forgery, and in 1962, also for second degree forgery. Each of these- 3 -

convictions resulted in three-year sentences. Gilbr eath had long since completed serving both sentences at the time of his convictio n for uttering a forged instrument. A prisoner is no longer in custody for§ 2254 purposes once his sentence has expired. See Maleng v. Cook , 490 U.S. at 491-92. Thus, in order to find that Gilbreath is “in custody” for the two prior convictions at issue, we must find that the trial c ourt relied upon these allegedly unconstitutional convictions to enhance Gilbreath’s current forged instrument
sentence. See Gamble v. Parsons , 898 F.2d at 118. Neither the magistrate judge nor the district court found any support for Gilbre ath’s assertion that the trial court relied on the convictions at issue in reachin g its sentencing decision. We have undertaken a thorough review of the record and we agree that there is no evidence that these convictions were used to enhanc e Gilbreath’s sentence for his current forged instrument conviction. Gilbreath was found guilty of uttering a forged ins trument in violation of 21 Okla. Stat. Ann. § 1592 (1983). The statute def ines this crime as the equivalent of forgery in the second degree. Under O klahoma law, forgery in the second degree is punishable by imprisonment up to s even years. 21 Okla. Stat. Ann § 1621. Five years for second degree forgery i s within the statutory range.
See Buzzard v. State , 509 P.2d 190 (Okla. Crim. App. 1973) (five-year s entence for uttering a forged instrument within the statuto ry range and not so excessive as- 4 -

to shock the conscience). Thus, the imposition of afive-year sentence for seconddegree forgery does not by itself lead to a conclus ion that the sentence was enhanced by the trial court. Moreover, even thoug h the trial court had access to information regarding Gilbreath’s lengthy criminal record, including the two convictions at issue, it did not indicate in any way that it enhanced Gilbreath’s sentence based upon these or any other of his convi ctions. Gilbreath offers no evidence to the contrary. In short, Appellant has failed to show that his sentence was enhanced by the convictions he seeks to challen ge. Therefore he is not “in custody” for those convictions and cannot seek revi ew of those conviction under 28 U.S.C. § 2254. See Gamble , 898 F.2d at 118-19. Appellant has failed to make “a substantial showing of the denial of a constitu tional right” as required by 28 U.S.C. § 2253(c)(2). His request for a Certificat e of Appealability is denied. Gilbreath also requests that his appeal proceed wit hout payment of fees. Because the mandatory filing fees enacted in the Pr ison Litigation Reform Act do not apply to habeas petitions, United States v. Sim monds , 111 F.3d 737, 744 (10th Cir. 1997), the standard for granting leave in form a pauperis on appeal is based upon whether the petitioner “has demonstrated a fin ancial inability to pay and whether he has made a reasoned, nonfrivolous argume nt on the law and facts in support of the issues raised” in his petition. McIn tosh v. United States Parole- 5 -

Comm’n , 115 F.3d 809, 812-13 (10th Cir. 1997). Gilbreath meets both of these requirements and may proceed in forma pauperis. For the above reasons, Gilbreath’s request to proce ed in forma pauperis is GRANTED, Gilbreath’s request for a Certificate of Appealability is DENIED and the appeal is DISMISSED. The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge