PUBLISH

_____ UNITED STATES COURT OF APPEALS Filed 2/26/96 TENTH CIRCUIT

_____ JETTY LEE HARVEY, ) ) Petitioner-Appellant, ) ) v. ) No. 95-8011 ) DUANE SHILLINGER, Warden, Wyoming ) State Penitentiary; ATTORNEY ) GENERAL OF THE STATE OF WYOMING, ) ) Respondents-Appellees. )

______ APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D.C. No. 93-CV-106)

______ Mary Beth Wolff (William U. Hill, Attorney General with her on the briefs), Special Assistant Attorney General, Cheyen ne, Wyoming, for appellees. Howard A. Pincus (Michael G. Katz, Federal Public D efender with him on the briefs), Assistant Federal Public Defender, Denver, Colorado, for appellant.

______ Before KELLY, BARRETT and JONES*, Circuit Judges.

______ BARRETT , Senior Circuit Judge.

______ *The Honorable Nathaniel R. Jones, Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitt ing by designation.

______- 2 -

Jetty Lee Harvey (Harvey) appeals from the district court’s order of February 1, 1995, Harvey v. Shillinger , 893 F. Supp. 1021 (D. Wyo. 1995)(Harvey III ), dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254.
Facts On January 9, 1986, Harvey and two others were char ged in the District Court, Third Judicial District, SweetwaterCounty, Wyoming, with kidnapping and sexual assault in the first degree or aiding and abetting in those offenses. Following a three-day jury trial in July, 1987, Harvey was convicted of all ch arges. At sentencing, on October 23, 1987, the trial court as ked Harvey if he had anything to say in mitigation of punishment. A fter being sworn in, Harvey made an allocution statement to the tria l court under oath. He was subsequently sentenced to not less th an twenty years nor more than thirty years imprisonment on each cha rge, to run concurrently. On direct appeal to the Wyoming Supreme Court, Harv ey’s convictions were vacated on speedy trial grounds. See Harvey v.
State , 774 P.2d 87 (Wyo. 1989) (Harvey I ). On July 7, 1989, Harvey was charged with conspiracyto commit kidnapping and conspiracy to commit sexual assault. After a plea agreement fell through and the Wyoming Supreme Cour t denied a writ of prohibition, Harvey proceeded to trial on the co nspiracy1 At his request, this portion of Harvey’s allocution

statement, which had been excised by the district c ourt, was also read to the jury: She relaxed. I let go, turned back and finished rolling up the window. The woman got up into the b ack seat. She started a conversation which was, like, ‘You - 3 - charges. At trial, the prosecution read portions o f Harvey’s allocution statement made at his first sentencing h earing in evidence, including the following:

I meant this woman no harm. In fact, I even stoppe d her from being harmed at the end. But before that, there was--I even tried stopping. I tried resisting long before she was even abducted. Everett was just ins istent from two blocks past her to two blocks to her, tell ing me to grab her. Grab her. And I was saying, ‘No. I don’t want this.’ And even when I pulled up beside her a nd I rolled down my window, she walked by. I just askedher if she wanted a ride because it was cold. She neve r looked at me. She never answered. She just kept h er head down, her hands in her coat pocket and she wal ked by. And I turned to Everett and I said, ‘See, she doesn’t even want a ride.’ And he says, ‘No. All y ou got to do is grab her.’ He throws it into reverse and backs up past the woman, slapping me, ‘Just grab her. Gr ab her.’ And that’s when I finally broke down on it t here. I got out and stepped out in front of her. She wal ked up to me, lifted her head, looked at me and I said, ‘H ey, look. Just get in and we’ll give you a ride home.’ And she turned and walked around me. And that’s when I heard Everett say, ‘Grab her, chicken shit.’ And that wa s the final straw of the dare. I turned and grabbed her by the coat, the shoulder, pulled her off her feet toward the pickup. Picked her up and put her in the vehicle. She was laying betweenthe seats with her hands up like this. She was saying, ‘Don’t hurt me.’ I said, ‘No one is going to hurt you.’ She relaxed. I turned back to roll up my window an d she starts kicking the dash with her boots and hollerin g, ‘Don’t hurt me. Don’t hurt me.’ I grabbed her leg s by the boots and I said, ‘Don’t worry. No one is goin g to hurt you.’ 1guys from Texas?’ And we just kind of smiled. I lo oked

at David. And she says--looks at David and leans u p against him and says to him, ‘You’re kind of cute.’ And they actually kissed at that time. She took he r coat off and I quit watching from that point on. W e just drove. (Exhibits to Motion to Supplement the Record, Exhib it B at 1172). - 4 - And then Everett Phillips--I don’t know where we were going. He pulls into this trailer park and st art hollering, ‘I want some. I want some.’ I says, ‘N o, Everett. Let’s take the woman home.’ And he goes, ‘Well, the bitch can suck it.’ And I grabbed his a rm then and I said, ‘No, Everett. We’re taking her home. Let’s go.’ And that is when I saw a cop car go by through the window. And I said, ‘Now there is a co p. Let’s just take her home.’ And when we stopped, the cops, I didn’t even know i t was cops. I could see lights in the mirror. Evere tt got out and went back to them. He was gone for, anyway , two minutes and there was no struggle in the back. The re was no one hollering, screaming. I just looked in the mirror. And then as I’m looking in the mirror backa couple of minutes or so, this woman, Sharon Brouill ette, she got between the seats and started headed for th e driver’s door. And I just stepped out of the truck . And the police officer told me to stop and put my hands on the camper. That’s just what I done until after th e fight with David Swazo. They cuffed us and took us to jail. But, at the time of all of this, there was a real- -there was a big factor too of very drunk. (Exhibits to Motion to Supplement the Record, Exhib it B at 1168- 1170). On January 17, 1990, following a jury trial, Harveywas convicted of conspiracy to commit kidnapping and ac quitted of conspiracy to commit sexual assault. He was senten ced to twelve to fifteen years in the Wyoming State Penitentiary. Harvey appealed his conspiracy conviction to the Wy oming- 5 -

Supreme Court alleging, interalia , double jeopardy, speedy trial violation, violation of right to an impartial jury, and improper use of his allocution statement. On June 11, 1992, the Wyoming Supreme Court affirmed his conspiracy conviction. See Harvey v.
State , 835 P.2d 1074 (Wyo.), cert . denied , 506 U.S. 1022 (1992) (Harvey II ). On April 5, 1993, Harvey petitioned the federal dis trict court for a writ of habeas corpus alleging: improper use of his allocution statement made at the sentencing phase o f his first trial; ineffective assistance of counsel at his fir st sentencing; denial of his right to speedy trial; double jeopard y; and Wyoming Supreme Court Justice Thomas’ participation in the second appeal violated “fundamental fairness” principles. On February 1, 1995, the district court dismissed H arvey’s petition. See Harvey III , 893 F. Supp. 1021. The district court found that: the use of Harvey’s allocution statemen t at his conspiracy trial was not error because he “voluntar ily, knowingly, and intelligently waived his right against self-inc rimination at his first sentencing hearing,” id . at 1030; Harvey’s was not denied effective assistance of counsel; “prosecution of [H arvey] on conspiracy charges after his conviction for the sub stantive offenses, does not violate double jeopardy principl es,” id . at 1032; Harvey’s right to a speedy trial was not viol ated; and Justice Thomas’ participation in Harvey’s direct ap peal did not2 Harvey’s original prose petition raised issues (1),

(3), and (4). After counsel was appointed, issue ( 2) was added. Due to the inadequate supplemental briefing, we wil l address issues (3) and (4) according to Harvey’s prose petition which we review under a liberal standard. See Jones v. Cowley28 F.3d 1067, 1069 (10th Cir. 1994). - 6 - violate his right to due process. We agree.

Issues On appeal, Harvey contends that the district court erred in dismissing his petition for a writ of habeas corpus because: (1) his conspiracy conviction violated the principles o f double jeopardy; (2) his Sixth Amendment right to a speedytrial was violated; (3) the use of his allocution statement v iolated his Fifth Amendment and Fourteenth Amendment rights; an d (4) trial counsel’s failure to advise him of the consequences of making an allocution statement at his first sentencing hearin g deprived him of his Sixth Amendment right to effective assistanc e of counsel. 2 We review a district court’s legal conclusions in d ismissing a petition for a writ of habeas corpus de novo . Ballinger v. Kerby , 3 F.3d 1371, 1374 (10th Cir. 1993). “Legal conclus ions and mixed questions of law and fact are reviewed de novo , although findings of fact underlying mixed questions are accorded the presumption of correctness.” Manlove v. Tansy , 981 F.2d 473, 476 (10th Cir. 1992).- 7 - Discussion I. Double Jeopardy Harvey contends that his second trial and convictio n for conspiracy to commit kidnapping after the Wyoming S upreme Court vacated his convictions for kidnapping and sexual a ssault violates the Double Jeopardy Clause of the Fifth Amendment. The Double Jeopardy Clause provides: “[N]or shall a ny person be subject for the same offense to be twice put in jeopardy of life or limb.” In United States v. Felix , 503 U.S. 378, 380-81 (1992), the Supreme Court held that “prosecution of a defen dant for conspiracy, where certain of the overt acts relied upon by the Government are based on substantive offenses for wh ich the defendant has been previously convicted, does not v iolate the Double Jeopardy Clause.” See alsoPinkerton v. United States , 328 U.S. 640, 643 (1946) (“[T]he commission of the subs tantive offense and a conspiracy to commit it are separate and dist inct offenses . . . [a]nd the plea of double jeopardy is no defense to a conviction for both offenses.”). Accordingly, we hold that prosecuting Harvey on con spiracy charges after his convictions for the substantive o ffenses were vacated did not violate his right to be protected f rom double jeopardy.

II. Speedy Trial- 8 -

Harvey contends that he was denied his Sixth Amendm ent right to a speedy trial by the delay between his original arrest on the substantive offenses on January 5, 1986, and his se cond trial on the conspiracy charges on January 8, 1990. “A Sixth Amendment speedy trial claim is assessed b y balancing the length of the delay, the reason for the delay, whether the defendant asserted his right to a speedy trial, andwhether the delay prejudiced the defendant.” United States v. Dirden , 38 F.3d 1131, 1138 (10th Cir. 1994) (quoting United States v. Tranakos , 911 F.2d 1422, 1427 (10th Cir. 1990)). See Barker v. Wingo , 407 U.S. 514, 530 (1972) (identifying four factors in speedytrial balancing test). While no single factor is “either a necessa ry or sufficient condition to the finding of a deprivation of the ri ght to a speedy trial,” Barker , 407 U.S. at 533, “the length of the delay is to some extent a triggering mechanism.” Id . at 530. Only if the period of delay is “presumptively prejudicial” needwe inquire into
the other factors. Id .; Dirden38 F.3d at 1137; Tranakos , 911 F.2d at 1427. In determining whether a delay is “presumptively pr ejudicial,” we have not drawn a bright line beyond which pretri al delay will trigger a full Barkeranalysis because “the length of delay that will provoke such an inquiry is necessarily depende nt upon the peculiar circumstances of the case.” Barker , 407 U.S. at 530-31.
See Dirden , 38 F.3d at 1138 (seven and one-half month delay b etween3 Harvey was acquitted of conspiracy to commit sexual

assault; thus, we are only concerned with the charg e of conspiracy to commit kidnapping on which we was con victed. - 9 - arraignment and trial not “presumptively prejudicia l”); United States v. Occhipinti , 998 F.2d 791, 798 (10th Cir. 1993) (delay of 172 days insufficient to trigger Barkeranalysis); United States v. Kalady , 941 F.2d 1090, 1095-96 (10th Cir. 1991) (eight mo nth delay between indictment and trial nonprejudicial); Unite d States v. Bagster , 915 F.2d 607, 611 (10th Cir. 1990) (delay of thir ty months insufficient to trigger Barkeranalysis). But see Perez v. Sullivan , 793 F.3d 249, 255 (10th Cir.) (fifteen month dela y triggered Barkeranalysis), cert . denied , 479 U.S. 936 (1986). In addition, the right to a speedy trial “attaches only when a formal criminal charge is instituted and a crimin al prosecution begins.” United States v. MacDonald , 456 U.S. 1, 6 (1982). Hence, “[o]nce charges are dismissed, the speedy trial gua rantee is no longer applicable.” Id . at 8. Because Harvey’s original convictions were vacated and conspiracy to commit kidnapping 3is a separate offense, see part I., the speedy trial clock for Harvey’s second tria l did not start to run until the first filing relating to the consp iracy charge. Thus, the relevant time period is from the filing o f the indictment on the conspiracy charge on July 7, 1989, until the date of the conspiracy trial on January 8, 1990, 185 days or ap proximately six
months.- 10 -

This period is further reduced by two delays attrib utable to Harvey. See Dirden , 38 F.3d at 1138 (delays attributable to the defendant do not weigh against the government). Fi rst, Harvey filed a petition for a writ of prohibition with the Wyoming Supreme Court on July 25, 1989, which was denied on Septemb er 18, 1989.
See State ex rel. Harvey , 779 P.2d 291 (Wyo. 1989). This is a span of fifty-five (55) days. Second, on December 18, 1 989, an order certifying questions to the Wyoming Supreme Court o n Harvey’s motion was entered. The Wyoming Supreme Court rema nded the case to the district court with the questions unanswered onJanuary 2, 1990. This is a span of fifteen (15) days. Theref ore, the time from the filing of the complaint to the date of tri al, with time deducted for delays attributable to Harvey, is 115 days. Based upon the circumstances of this case and appli cation of the speedy trial factors outlined in Barker , we conclude that the 115-day time span between the filing of the complai nt and the date of the start of the trial was neither “presumptivel y prejudicial” nor significantly long. Thus, under Barker , we need not analyze the speedy trial issue further. Accordingly, Harve y was not denied his right to a speedy trial.

III. Allocution Statement Harvey challenges the use of his allocution stateme nt as evidence of guilt in his conspiracy trial. Harvey contends that4 Fed. R. Cr. P. 32(c) (3)(C) provides that: (3) Imposition of Sentence. Before imposing sentence, the court must: * * * (C) address the defendant personally and determine whether the defendant wishes to make a statement an d to present any information in mitigation of the senten ce; - 11 - his allocution statement was not made voluntarily a nd that he did not know the rights he was giving up by making the statement. Under 28 U.S.C. § 2254(a) an application for a writ of habeas corpus to disturb a state court judgment may issue only if it is found that the applicant is “in custody pursuant to the judgment of a State court . . . in violation of the Constitutio n or laws or treaties of the United States.” Thus, the only inj ury that will suffice to support a petition for habeas corpus rel ief is an injury to a petitioner’s federally protected right; state law injuries cannot and do not suffice. Pulley v. Harris , 465 U.S. 37, 41 (1984). While Wyoming has recognized the right to make a st atement in mitigation of a fine or punishment as constitutiona lly protected,

see Christy v. State , 731 P.2d 1204, 1207 (Wyo. 1987), under federal law, the right to allocution is not constit utionally protected. Hill v. United States , 368 U.S. 424, 428 (1962); United
States v. Gardner , 480 F.2d 929, 932 (10th Cir.), cert . denied , 414 U.S. 977 (1973). Rather, it is a right delineated by Fed. R. Cr. P. 32(c)(3)(C) 4 , the violation of which is not subject to collateral attack as unconstitutional. Hill , 368 U.S. at 426.- 12 -

Therefore, the fundamental issue here is not whethe r Harvey’s right to allocution was violated, but whether his right t o due process was violated by forcing him to choose between his c onstitutional right to remain silent and his statutory right to s peak on his own behalf in mitigation of punishment. In Crampton v. Ohio , decided with McGautha v. California , 402 U.S. 183 (1971), vacatedinpart onothergrounds , 408 U.S. 491 (1972), the Court addressed a similar situation und er Ohio’s single trial procedure where a defendant could exercise hi s constitutional right not to be compelled to be a witness against h imself on the issue of guilt only at the cost of surrendering anychance to plead his case on the issue of punishment. The Court uph eld Ohio’s single procedure, stating:

The criminal process, like the rest of the legal system, is replete with situations requiring “the m aking of difficult judgments” as to which course to follo w. McMann v. Richardson , 397 U.S., at 769. Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. The threshold question is whether compelling the election impairs to an appre ciable extent any of the policies behind the rights involv ed. Crampton , 402 U.S. at 213. See Jenkins v. Anderson , 447 U.S. 231, 236 (1980); Corbitt v. New Jersey , 439 U.S. 212, 218--19 n.8 (1978) (quoting Crampton ); Middendorf v. Henry , 425 U.S. 25, 48 (1976) (quoting Crampton ); United States v. Jenkins , 904 F.2d 549, 558 n.10 (10th Cir. 1990). We turn first to the privilege against self-incrimi nation.- 13 -

The contention is that Harvey was unlawfully compel led to become a witness against himself in order to take advantage of his right to allocution in the hope of receiving a lenient sente nce. The Court in Cramptondefined the issue as “whether it is consistent wit h the privilege for the State to provide no means wherebya defendant wishing to present evidence or testimony on the iss ue of punishment may limit the force of his evidence . . . to that i ssue.” Id . at 213-14. The CramptonCourt concluded that “the policies of the privilege against compelled self-incrimination are not offended when a defendant . . . yields to the pressure to te stify on the issue of punishment.” Id . at 217. In reaching its decision, the Court cited to many examples where the defendant is forced to choose between competing rights. See Brown v. United States , 356 U.S. 148 (1958) (one who takes the stand in his ownbehalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his dir ect examination); Spencer v. Texas , 385 U.S. 554, 561 (1967) (a defendant who takes the stand in his own behalf maybe impeached by proof of prior convictions or otherwise inadmissibl e evidence); United States v. Calderon , 348 U.S. 160, 164 n.1 (1954) (a defendant whose motion for acquittal at the close o f the State’s case is denied must decide whether to stand on his motion or put on a defense, with the risk that in so doing he will b olster the- 14 -

State’s case enough to support a verdict of guilty) ; Williams v. Florida , 399 U.S. 78 (1970) (upheld a Florida law requirin g a defendant to choose between abandoning his alibi de fense or giving the State both an opportunity to prepare a rebuttal and leads from which to start).Accordingly, the privilege against compelled selfincrimination is not offended when a defendant yiel ds to the pressure to testify on the issue of punishment in t he hope of leniency. A defendant’s choice to exercise his rig ht to allocution, like the choice to exercise the right t o testify, is entirely his own; he may speak to the court, but he is not required to do so. Once a defendant chooses to testify, tho ugh, he waives his privilege against compelled self-incrimination with respect to the testimony he gives and the testimony is admissi ble in evidence against him in later proceedings. See Harrison v. United States , 392 U.S. 219, 222 (1968) (“[W]e do not question the general evidentiary rule that a defendant’s testimony at a former trial is admissible in evidence against him in later proceed ings.”). It makes no difference that the defendant may have bee n motivated to testify in the first instance only by reason of the strength of the lawful evidence adduced against him. Id . Therefore, the use of a Harvey’s allocution statement in his subsequent con spiracy trial did not violate his due process rights if the makin g of the statement was an effective waiver of his Fifth Amen dment rights.5 Although Harvey conceded the issue of voluntariness ,

Harvey’s appointed counsel rests the bulk of his ar gument on this issue premised on the idea that the trial court coe rced Harvey into making his allocution statement by addressing him personally and asking if he would like to make a statement in mitigation of punishment. (Appellant’s Supplemental Opening Brie f at 37-42). However, the trial court simply followed the dictat es of the Wyoming rules of criminal procedure. See W. R. Cr. P. 32(c); (ROA, Vol. I, Tab 12, Exhibit 2 at 2). There canno t be coercion - 15 - An effective waiver of one’s Fifth Amendment right against compelled self-incrimination may exist only if it i s voluntary, knowing, and intelligent with an understanding of t he consequences of such waiver. See Miranda v. Arizona , 384 U.S. 436, 444 (1966). In Colorado v. Spring , 479 U.S. 564, 573 (1987), the Court stated that the inquiry of whether a waiver is coerced “ha s two distinct dimensions:” First the relinquishment of the right must have bee n voluntary in the sense that it was the product of afree and deliberate choice rather than intimidation, coe rcion, or deception. Second, the waiver must have been ma de with a full awareness both of the nature of the rig ht being abandoned and the consequences of the decisio n to abandon it. Only if the “totality of the circumsta nces surrounding the interrogation” reveal both an uncoe rced choice and the requisite level of comprehension maya court properly conclude that the Mirandarights have been waived. (quoting Moran v. Burbine , 475 U.S. 412, 421 (1986)). We hold that Harvey’s decision to make an allocutio n statement was voluntary. At the pretrial hearing to determin e if his allocution statement was admissible in his conspira cy trial, Harvey conceded that he made his allocution statement volu ntarily and that
he was not coerced. 5(ROA, Vol. I, Tab 3, Exhibit C at 969).when the court simply follows the mandated procedur es without any

independent elaboration. - 16 - Therefore, our only concern is whether or not he di d so knowingly, intelligently, and with an understanding of the con sequences. Although Harvey may not have been aware of the spe cific consequences that ultimately resulted from his waiv er of his right to remain silent at the sentencing hearing, “[t]he Constitution does not require that a criminal suspect know and u nderstand every possible consequence of a waiver of the Fifth Amendment privilege.”
Colorado , 479 U.S. at 574. “The Fifth Amendment guarantee i s both simpler and more fundamental: A defendant may not b e compelled to be a witness against himself in any respect.” Id . at 574. Under Miranda , the defendant must be aware of his right to remai n silent and of the consequences of abandoning that right. Id . at 577. There is no allegation that Harvey failed to unders tand the basic privilege guaranteed by the Fifth Amendment; Harvey understood that he had the right to remain silent. Nor is there any allegation that he misunderstood the consequenc es of speaking freely to the district court; Harvey knew that anyt hing he said could be used as evidence against him. Harvey was advised of his Fifth Amendment rights at the time he was arrested, at the time of his initial appearance in county court, and at the time of his arraignment in district court. Harvey was represen ted by counsel at all times. Finally, Harvey made his allocution statement under- 17 -

oath after having been sworn in by the trial court. In sum, we agree with the district court that Harvey “voluntar ily, knowingly, and intelligently waived his right against self-inc rimination at his first sentencing hearing.” Harvey III , 893 F. Supp. at 1030.

IV. Ineffective Assistance Harvey contends that he was denied effective assist ance of counsel at the sentencing phase of his first trial because his counsel failed to advise him that his allocution st atement could be used against him in a second trial. “The writ of habeas corpus shall not extend to a pr isoner unless [h]e is in custody in violation of the Const itution or laws or treaties of the United States.” 28 U.S.C. § 224 1(c)(3). See
also28 U.S.C. § 2254(a). In Maleng v. Cook , 490 U.S. 488, 491-92 (1989), the Court concluded that while the concept of “in custody” does not require that the petitioner be physically confined and extends beyond incarceration to parole on an unexpi red sentence, it does not extend to the “situation where a habeas pe titioner suffers no present restraint from a challenged conviction” at the time of the filing of the habeas petition. In Gamble v. Pa rsons , 898 F.2d 117, 118 (10th Cir.), cert . denied , 498 U.S. 879 (1990), we held that Maleng : precludes a defendant from challenging a fully-expi red conviction in isolation even though it may have pot ential6 For the purposes of this case only, we construe

Harvey’s petition as prose , even though appointed counsel filed an Appellant’s Supplemental Opening Brief, to avoidthe adverse effects of counsel’s apparent oversight of Maleng ’s and Gamble ’s prohibition against attacking expired convictions d irectly. - 18 - collateral consequences in some future case. Furth er, even if the fully-expired conviction, has, in fact been used to enhance a subsequent sentence, it may not b e attacked directly in a habeas action. Rather the a ttack must be directed toward the enhanced sentence underwhich the defendant is in custody. However, if the attac k is so directed, the defendant may argue that his prese nt sentence is improper because it has been enhanced b y a prior, unconstitutional conviction.
See alsoWaldon v. Cowley , 880 F.2d 291, 292 (10th Cir. 1989). Harvey is currently incarcerated pursuant to the co nspiracy conviction and sentence entered after his second tr ial. However, his claim is a direct attack on his counsel’s perfo rmance at the sentencing phase of his first trial. Inasmuch as h is first convictions were vacated by the Wyoming Supreme Cou rt, see Harvey
I , 774 P.2d 87, he suffers no present restraint as a result of those convictions. Accordingly, we interpret his h abeas petition, when construed with the deference to which he is en titled as a pro

se litigant, 6as a challenge to his current incarceration throug h his first counsel’s performance at the sentencing h earing during his first trial. Therefore, the issue becomes whet her Harvey’s “present sentence is improper because it has been e nhanced by a prior unconstitutional conviction.” Gamble , 898 F.2d at 118. To constitute enhancement, a petitioner must show t hat “if he prevails in challenging his prior expired convictio n, the sentence- 19 -

that he is currently serving will be reduced.” Col lins v. Hesse , 957 F.2d 746, 748 (10th Cir. 1992). If Harvey were to prevail on his ineffective assistance of counsel claim, his fi rst convictions would be unconstitutional. However, this would not affect his current sentence. The subsequent use of Harvey’s a llocution statement depends on the effectiveness of his waive r of his Fifth Amendment rights, see part III.; it does not depend on his counsel’s failure to advise him in any way. Theref ore, Harvey’s current sentence was not “enhanced” in any manner b y his vacated prior convictions. As a result, Harvey is not “in custody” for purpose s of this claim. Therefore, we are without jurisdiction to co nsider this claim further.

Conclusion Based of the foregoing analysis, the district court properly dismissed Harvey’s petition for a writ of habeas co rpus filed pursuant to 28 U.S.C. § 2254.
AFFIRMED.