                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           FEB 18 2003
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

 ANDREW S. MAVROVICH,

               Petitioner - Appellant,

 v.                                                        No. 02-3323
                                                     D.C. No. 99-CV-3274-DES
 STATE OF KANSAS; ATTORNEY                                  (D. Kansas)
 GENERAL OF THE STATE OF
 KANSAS,

               Respondents - Appellees.


                            ORDER AND JUDGMENT


Before EBEL , HENRY , and HARTZ , 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.      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not binding precedent, except under the doctrines of law of the case, res judicata,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 10th Cir. R. 36.3.
      On August 16, 1999, Petitioner pro se Andrew Mavrovich filed an

application for a writ of habeas corpus in federal district court, under 28 U.S.C.

§ 2254. The district court considered the merits of Petitioner’s claims in

determining that he was not entitled to habeas relief. Petitioner now appeals the

district court’s dismissal of his application. We hold that Petitioner’s application

does not satisfy the jurisdictional requirements for § 2254 actions. We therefore

vacate the district court’s judgment and remand this case to the district court with

instructions to dismiss the application for lack of jurisdiction.

      Section 2254 grants federal court jurisdiction over an application for a writ

of habeas corpus only when the applicant is “in custody pursuant to the judgment

of a State court.” 28 U.S.C. § 2254(a) (emphasis added); see also 28 U.S.C.

§ 2241(c)(3). “[W]hile the concept of ‘in custody’ does not require that the

petitioner be physically confined and extends beyond incarceration to parole on an

unexpired sentence, it does not extend to the ‘situation where a habeas petitioner

suffers no present restraint from a challenged conviction’ at the time of the filing

of the habeas petition.” Harvey v. Shillinger, 76 F.3d 1528, 1537 (10th Cir.

1996), quoting Maleng v. Cook, 490 U.S. 488, 491-92 (1989).

      “[E]very federal appellate court has a special obligation to satisfy itself not

only of its own jurisdiction, but also that of the lower courts in a cause under

review . . . .” Bender v. Williamsport Area School Dist., 475 U.S. 534, 541


                                          -2-
(1986) (internal quotation marks omitted). In an effort to determine whether the

district court had jurisdiction over Petitioner’s application, we entered an order on

January 28, 2003, observing that Petitioner did not appear to have been “in

custody on the conviction being challenged in this case when he filed his petition

for habeas corpus under 28 U.S.C. § 2254 in the district court.” We directed

Petitioner to explain “whether he was incarcerated, on parole, on probation, or

had his liberty restrained in any way by the state as a result of this conviction.”

      In response, Petitioner filed a document stating that he was on parole until

November 11, 1998. Petitioner seems to assume that all he needs to establish is

that he was “in custody” at the time he initiated challenges to his sentence in state

court. For example, he points out that he filed a challenge in state court in March

1997. The relevant jurisdictional inquiry, however, is not whether Petitioner

began proceedings in state court while his liberty was restrained. Rather, the

question is whether he filed his federal habeas application while his liberty was

restrained. Because Petitioner’s parole ended in November 1998, he was not “in

custody” when he filed his § 2254 application in August 1999.




                                          -3-
      We therefore vacate the district court’s judgment and remand this case to

the district court with instructions to dismiss the application for lack of

jurisdiction.

                                                Entered for the Court


                                                Harris L Hartz
                                                Circuit Judge




                                          -4-
