UNITED STATES CO URT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff – Appellant,

v. JOSEPH EDWARD MCCONNEL, Defendant - Appellant. No. 12-6092 (D.C. Nos. 5:07-CV-00980-M and 5:02-CR-00009-M-1) (D. W.D. Okla.)

ORDER DENYING CERTIFIC ATE OF APPEALABILITY AND DISMISSING CASE

Before LUCERO , O'BRIEN , and MATHESON , Circuit Judges.

In 2002, the district court sentenced Jose ph Edward McConnel to 71 months of imprisonment and three years of supervised release following his conviction on four counts of violating federal firearm laws. United States v. McConnel , 425 F. App’x 691, 692 (10th Cir.), cert. denied , 132 S. Ct. 279 (2011). We affirmed his conviction and

sentence. United States v. McConnel, 464 F.3d 1152, 1164 (10th Cir. 2006). He later moved to vacate, set aside or corre ct his sentence under 28 U.S.C. § 2255. The district court denied his motion. McConnel , 425 F. App’x at 691. In considering his appeal from that disposition, we denied hi s request for a certificate of appealability (COA) on all but one of his claims. Id. However, we granted a COA to consider his FILED United States Court of Appeals Tenth Circuit 

### July 6, 2012
Elisabeth A. Shumaker Clerk of Court- 2 - ineffective assistance of counsel claim. Id. at 692. The survivi ng claim asserted that appellate counsel should have , but did not, challenge as untimely the government’s request for an upward departure. 1 Id. at 692-93. We remanded the case to allow “the district court [to] resolve any issues of deficient performance and prejudice, which may include developing the facts.” Id. at 691. On remand, the district court again denied McConnel’s motion. Since he had, by then, served his entire sentence, including the term of supervis ed release, it concluded the motion was moot. 2 It also denied his motion to proc eed on appeal without prepayment of fees. See 28 U.S.C. § 1915. 3 He requests a COA from us in order to contest the mootness holding. In his view, his § 2255 motion was justiciable when filed, as he was then in custody, and it remains justiciable until decided. He overlooks the very na ture of the mootness doctrine; it comes into play because of changed circumstances. A COA is a jurisdictional prerequisite to our review of a motion for § 2255 relief. 28 U.S.C. § 2253(a), (c)(2); Miller–El v. Cockrell , 537 U.S. 322, 336 (2003). We will

1 “The day before Mr. McConnel’s senten cing . . . the government’s sentencing memorandum announced for the first time that it was seeking an upward departure on his criminal history, based on a post-convi ction firearms sale in July 2002.” McConnel , 425 F. App’x at 693. 2 McConnel did not explicitly request a C OA with the district court but did seek a COA in this court using the form we provide for this purpose. See 10th Cir. R. 22.1(A). 3 The district court conc luded he had “not presen ted a reasoned, nonfrivolous argument on appeal and that the appeal is not taken in good faith.” (District Court Order of 05/17/12 at 1.) He has renewed his request here to appeal without prepayment of fees with this Court.- 3 - issue one “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c )(2). This means th e applicant must demonstrate “that reasonable jurists could deba te whether (or, for that matter, agree that) the [motion] should have been resolved in a different manner or that the issues presented were adequate to deserve encour agement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). In evaluating whether an applicant has satisfied this burden, we undertake “a prelimin ary, though not definitive, consideration of the [legal] framework” applicab le to each of his claims. Miller–El , 537 U.S. at 338. McConnel confuses two pertinent ques tions of timing—one statutory and one constitutional—associated with § 2255 motions. The statut ory question is whether the movant was “in custody” at the time th e request was made. 28 U.S.C. § 2255; Spencer v.
Kemna , 523 U.S. 1, 7 (1998). He was; therefore, the district court had an obligation to address, but not necessarily to decide, his motion. That is because a “more substantial question” exists—c onstitutional mootness. See Spencer, 523 U.S.at 7. This questio n “subsists through all stag es of federal judicial proceedings.” Id. (quotations omitted). When a pris oner’s § 2255 motion challenges the underlying conviction, the prisoner’s releas e from custody does not moot the request because a conviction carries collateral conseque nces that persist even after release. Id. On the other hand, when the motion challe nges only the sentence, the movant must demonstrate “continuing ‘collate ral consequences’” to overcome a mootness challenge. Id. McConnel complains only a bout the length of his senten ce, not the validity of the conviction. He does not describe, as is his burden, any continuing collateral- 4 - consequences which would require his motion to be resolved. See Hernandez v. Starbuck, 69 F.3d 1089, 1093 (10th Ci r. 1995) (noting the appellant “bears the burden of demonstrating the alleged error”). His moti on was moot and the district court lacked jurisdiction to decide it. See Spencer , 523 U.S. at 7. Based on this “preliminary, though not definitive” analysis, no reasonable jurist could debate the correctness of the dist rict court’s mootness determination. See Miller– El , 537 U.S. at 338. McConnel’s a pplication for a COA is denied. We also deny McConnel’s request to appeal without prepayment of fees. He must immediately pay the full filing and docketing f ees to the Clerk of the District Court. See Kinnell v. Graves , 265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of an appeal does not relieve appellant of the obliga tion to pay all fees in full).
DISMISSED.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge