*This order and judgment is not binding precedent, except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 Tenth Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 8/9/96

FOR THE TENTH CIRCUIT

______

UNITED STATES OF AMERICA, )

)

Plaintiff-Appellee, )

)

v. ) No. 96-1124

) (D.C. No. 89-CR-70-Z)

RONALD SCHROEDER, ) (Dist. of Colo.)

)

Defendant-Appellant. )

______

ORDER AND JUDGMENT*

______

Before ANDERSON, BARRETT, and MURPHY, Circuit Judges.

______

After examining the briefs and appellate record, this panel

has determined unanimously to honor the parties’ request for a

decision on the briefs without oral argument. See Fed. R. App. P.

34(f); Tenth Cir. R. 34.1.9. The case is therefore ordered

submitted without oral argument. 

Ronald Schroeder (Schroeder), appearing pro se, appeals from

an order of the district court denying his “Motion to Reopen for

Writ of Habeas Corpus.” Schroeder filed his motion “in accordance
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with 28 U.S.C.A. [§] 2241 est seq and request[ed] this Court to reopen [his] complaint for the purpose of hearing and granting” him

habeas corpus relief. (R., Vol. 1, Tab 1 at 1).

On March 16, 1989, a federal grand jury in the District of

Colorado returned an indictment charging Schroeder with

transmitting a threat to injure another person in violation of 18

U.S.C. § 875(c). Schroeder proceeded to trial, was adjudged guilty

by a jury, and sentenced to eighteen months imprisonment with three

years supervised release. Schroeder’s conviction was affirmed on

appeal; however, his sentence was reduced to twelve months

imprisonment followed by three years supervised release. United

States v. Schroeder, 902 F.2d 1469 (10th Cir.), cert. denied, 498

U.S. 867 (1990). 

Schroeder completed his sentence and supervised release on or

about May 2, 1993. On January 23, 1996, Schroeder filed his

“Motion to Reopen for Writ of Habeas Corpus” pursuant to § 2241,

wherein he listed his new address as 2410 Ruth Fitzgerald Drive,

Plainfield, Illinois 60544. (R., Vol. 1, Tab I at 7). 

Within his motion, Schroeder alleged that he had been denied

his constitutional right to a fair trial by the conduct of a juror.

He alleged that Marq Warner (Warner), an attorney, was not

qualified to serve on his jury panel in 1989 because Warner had

then been charged with crimes leading to his subsequent disbarrment

in 1994. He contended that Warner’s inclusion on the jury panel
1Section 1865(b) provides, in part, that:

 

 In making such determination [for jury service] the

chief judge . . . or such other district court judge as

the plan may provide, shall deem any person qualified

to serve on the grand and petit juries in the district

court unless he-

 * * *

(5) has a charge pending against him for the commission

of, or has been convicted in a State or Federal court

of record of, a crime punishable by imprisonment for

more that one year and his civil rights have not been

restored. 

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violated 28 U.S.C. § 1865.1 Schroeder requested the court to reopen the complaint, set aside and reverse the guilty verdict and

dismiss the complaint with prejudice.

On January 31, 1996, the district court entered an order

denying Schroeder’s motion. The district court found that:

Schroeder had presented no evidence that Warner had a charge

pending against him for the commission of, or had been convicted

of, a crime punishable by imprisonment for more than one year at

the time that the jury was impaneled; the evidence presented by

Schroeder indicated only that Warner had been disbarred on May 2,

1994; Schroeder’s challenge to Warner’s qualifications made after

the verdict was entered, without a showing of prejudice, was

untimely; and Schroeder did “not clearly demonstrate[] that Mr.

Warner’s alleged lack of qualifications presented actual prejudice,

or impacted the fairness of the trial.” (R., Vol. 1, Tab 2 at 2).

On February 27, 1996, Schroeder filed a “Motion for Extension,

Motion for Appointment of Counsel, or in the Alternative, Notice of
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Appeal.” Within his motion, he requested that the court appoint an

attorney to represent him “in this Writ for Habeas Corpus, or in

the alternative . . . Defendant Schroeder files his notice of

Appeal.” (R., Vol. 1, Tab 3 at 4). On February 28, 1996, the

district court entered a minute order denying Schroeder’s motion

for appointment of counsel and ordering “that the document filed on

February 27, 1996, may be treated as a Notice of Appeal.” (R.,

Vol. I, Tab 4).

On appeal, Schroeder contends that the district court erred in

denying his motion without holding a hearing on misconduct by juror

Warner and in denying his motion on the basis of § 1865(b). The

government responds that Schroeder’s appeal should be dismissed

because “the district court lacked jurisdiction to consider his

motion” and “[t]his court consequently lacks jurisdiction to

consider this appeal.” (Appellee’s Brief at 7). We agree.

Federal courts are courts of limited jurisdiction, empowered

to hear only those cases and controversies authorized and defined

in the Constitution and Acts of Congress. Art. III, §§ 1 and 2,

Constitution of the United States of America; Bender v.

Williamsport Area School Dist., 475 U.S. 534, 541 (1986); Henry v.

Office of Thrift Supervision, 43 F.3d 507, 511 (1994). The

determination of a district court’s subject matter jurisdiction is

a question of law which we review de novo. Homeland Stores, Inc.

v. Resolution Trust Corp., 17 F.3d 1269, 1272 (10th Cir.), cert.
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denied, ___ U.S. ___ (1994). 

A challenge to a court’s jurisdiction may be raised at any

time, even for the first time on appeal. United States v.

Bustillos, 31 F.3d 931, 933 (10th Cir. 1994). When the court’s

jurisdiction is challenged, the plaintiff has the burden of proving

that jurisdiction exists. Wenz v. Memery Crystal, 55 F.3d 1503,

1505 (10th Cir. 1995). However, a court must construe all relevant

allegations in the light most favorable to the plaintiff. Laguna

Gatuna, Inc. v. Browner, 58 F.3d 564, 565 (10th Cir. 1995). 

On January 23, 1996, Schroeder filed his § 2241 “Motion to

Reopen for Writ of Habeas Corpus” under § 2241 challenging his

1989 conviction. His motion was filed more than two and one-half

years after he had completed his sentence and supervised release

and while he was residing at 2410 Ruth Fitzgerald Drive,

Plainfield, Illinois 60554. Habeas corpus relief, however, is not

available to collaterally attack a federal sentence under which the

defendant is not in custody at the time of initiating the petition.

Heflin v. United States, 358 U.S. 415, 418 (1959). Bustillos, 31

F.3d at 933. 

Inasmuch as Schroeder was not in custody at the time he filed

his § 2241 motion, we hold that the district court was without

jurisdiction to consider Schroeder’s § 2241 motion. Schroeder’s

appeal is, accordingly, DISMISSED.
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Entered for the Court:

James E. Barrett,

Senior United States

Circuit Judge