                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                     January 29, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court



V ER NO N JO SEPH TU RLEY ,

               Petitioner-A ppellant,
                                                         No. 06-1341
          v.
                                                        (D. Colorado)
                                                (D.C. No. 06-CV-00372-ZLW )
AL ESTEP, Limon Correctional
Facility, Warden; C OLO RA D O
ATTO RN EY G ENERAL,

               Respondents-Appellees.



                            OR D ER AND JUDGM ENT *


Before M U RPH Y, SE YM OU R , and M cCO NNELL, Circuit Judges.


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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Proceeding pro se, Vernon J. Turley seeks a certificate of appealability

(“COA”) so he can appeal the district court’s dismissal of the habeas petition he


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). In his petition, filed on M arch 3, 2006, Turley

attacks the validity of a 1976 Colorado conviction for conspiracy to commit

burglary, alleging (1) his rights to due process and equal protection were violated

because the trial court did not advise him of the consequences of his guilty plea,

(2) his First Amendment right to access the courts was violated because the

court’s actions caused him to relinquish his right to file a direct appeal, and (3)

the sentence he received exceeded the sentence set forth in the plea agreement.

The petition was referred to a magistrate judge w ho ordered Turley to show cause

as to why it should not be dismissed as untimely. See 28 U.S.C. § 2244(d)

(setting forth a one-year statute of limitations for § 2254 applications); Hoggro v.

Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (holding prisoners w hose state

convictions became final prior to the enactment of the Antiterrorism and Effective

Death Penalty Act have one year from April 24, 1996, to file a federal habeas

petition).

       Turley responded to the show cause order, arguing a post-conviction

motion he filed in a different matter tolled the one-year limitation period

applicable to the 1976 conviction. See 28 U.S.C. § 2244(d)(2) (“The time during

which a properly filed application for State post-conviction or other collateral

review with respect to the pertinent judgment or claim is pending shall not be

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counted toward any period of limitation under this subsection.”). The district

court considered Turley’s argument but dismissed his petition as untimely.

      After reviewing the record in this case, we conclude we do not have

jurisdiction to consider Turley’s § 2254 application. Turley asserts he was

sentenced to an indeterminate term of one-to-five years’ incarceration on the 1976

conviction he seeks to attack in this habeas matter. Because the sentence he

received for the 1976 conviction has expired, Turley is no longer “in custody

pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a); M aleng v. Cook,

490 U.S. 488, 492 (1989) (stating a § 2254 habeas petitioner whose sentence has

expired is no longer “in custody” for that conviction, even if it was used to

enhance his current sentence); see also Lackawanna County Dist. Attorney v.

Coss, 532 U.S. 399, 401 (2001) (“[Petitioner] is no longer serving the sentences

imposed pursuant to his [prior state] convictions, and therefore cannot bring a

federal habeas petition directed solely at those convictions.”).

      Accordingly, we grant Turley’s request for a COA, grant the motion to

proceed in forma pauperis, and dismiss the appeal for lack of jurisdiction. W e

remand to the district court with instructions to vacate its judgment and dismiss

the matter for lack of jurisdiction.

                                       ENTERED FOR THE COURT


                                       M ichael R. M urphy
                                       Circuit Judge

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