* This order and judgment is not binding precedent, e xcept

under the doctrines of law of the case, res judicat a, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order andjudgment may be cited under the terms and conditions of Tenth Ci r. R. 36.3. UNITED STATES COURT OF APPEALS Filed 8/9/96 FOR THE TENTH CIRCUIT

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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, th is panel has determined unanimously to honor the parties’ re quest for a decision on the briefs without oral argument. SeeFed. R. App. P. 34(f); Tenth Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. Ronald Schroeder (Schroeder), appearing prose , appeals from an order of the district court denying his “Motion to Reopen for Writ of Habeas Corpus.” Schroeder filed his motio n “in accordance- 2 -

with 28 U.S.C.A. [§] 2241 est seq and request[ed] t his Court to reopen [his] complaint for the purpose of hearing andgranting” him habeas corpus relief. (R., Vol. 1, Tab 1 at 1). On March 16, 1989, a federal grand jury in the Dist rict of Colorado returned an indictment charging Schroeder with transmitting a threat to injure another person in v iolation of 18 U.S.C. § 875(c). Schroeder proceeded to trial, was adjudged guilty by a jury, and sentenced to eighteen months impriso nment with three years supervised release. Schroeder’s conviction w as affirmed on appeal; however, his sentence was reduced to twelve months imprisonment followed by three years supervised rel ease. United
States v. Schroeder , 902 F.2d 1469 (10th Cir.), cert. denied , 498 U.S. 867 (1990). Schroeder completed his sentence and supervised rel ease on or about May 2, 1993. On January 23, 1996, Schroeder filed his “Motion to Reopen for Writ of Habeas Corpus” pursua nt to § 2241, wherein he listed his new address as 2410 Ruth Fitz gerald Drive, Plainfield, Illinois 60544. (R., Vol. 1, Tab I at 7). Within his motion, Schroeder alleged that he had be en denied his constitutional right to a fair trial by the con duct of a juror. He alleged that Marq Warner (Warner), an attorney, was not qualified to serve on his jury panel in 1989 becaus e Warner had then been charged with crimes leading to his subseq uent disbarrment in 1994. He contended that Warner’s inclusion on t he jury panel1 Section 1865(b) provides, in part, that:

In making such determination [for jury service] th e chief judge . . . or such other district court judg e as the plan may provide, shall deem any person qualifi ed to serve on the grand and petit juries in the distr ict court unless he- * * * (5) has a charge pending against him for the commis sion of, or has been convicted in a State or Federal cou rt of record of, a crime punishable by imprisonment fo r more that one year and his civil rights have not be en restored. - 3 - violated 28 U.S.C. § 1865. 1Schroeder requested the court to reopen the complaint, set aside and reverse the guilt y verdict and dismiss the complaint with prejudice. On January 31, 1996, the district court entered an order denying Schroeder’s motion. The district court fou nd that: Schroeder had presented no evidence that Warner hada charge pending against him for the commission of, or had b een convicted of, a crime punishable by imprisonment for more tha n one year at the time that the jury was impaneled; the evidence presented by Schroeder indicated only that Warner had been disb arred on May 2, 1994; Schroeder’s challenge to Warner’s qualificati ons made after the verdict was entered, without a showing of preju dice, was untimely; and Schroeder did “not clearly demonstrat e[] that Mr. Warner’s alleged lack of qualifications presented a ctual prejudice, or impacted the fairness of the trial.” (R., Vol. 1, Tab 2 at 2). On February 27, 1996, Schroeder filed a “Motion forExtension, Motion for Appointment of Counsel, or in the Altern ative, Notice of- 4 -

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 Schro eder’s motion for appointment of counsel and ordering “that the d ocument filed on February 27, 1996, may be treated as a Notice of Ap peal.” (R., Vol. I, Tab 4). On appeal, Schroeder contends that the district cou rt erred in denying his motion without holding a hearing on mis conduct 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 jurisd iction to consider this appeal.” (Appellee’s Brief at 7). W e agree. Federal courts are courts of limited jurisdiction, empowered to hear only those cases and controversies authoriz ed and defined in the Constitution and Acts of Congress. Art. III , §§ 1 and 2, Constitution of the United States of America; Bende r 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 denovo . 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 raisedat any time, even for the first time on appeal. United St ates v. Bustillos , 31 F.3d 931, 933 (10th Cir. 1994). When the cour t’s jurisdiction is challenged, the plaintiff has the b urden of proving that jurisdiction exists. Wenz v. Memery Crystal , 55 F.3d 1503, 1505 (10th Cir. 1995). However, a court must const rue all relevant allegations in the light most favorable to the plai ntiff. Laguna Gatuna, Inc. v. Browner , 58 F.3d 564, 565 (10th Cir. 1995). On January 23, 1996, Schroeder filed his § 2241 “M otion to Reopen for Writ of Habeas Corpus” under § 2241 cha llenging his 1989 conviction. His motion was filed more than tw o and one-half years after he had completed his sentence and super vised release and while he was residing at 2410 Ruth Fitzgerald D rive, Plainfield, Illinois 60554. Habeas corpus relief, however, is not available to collaterally attack a federal sentenceunder which the defendant is not in custody at the time of initiati ng 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
.- 6 - Entered for the Court:

James E. Barrett, Senior United States Circuit Judge