                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              MAR 1 2001
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 LESLIE-LE-ROY: JONES,

          Petitioner-Appellant,

 v.                                                              No. 00-2314
                                                                  (D. N.M.)
 VICTORY J. GRANT, Metropolitan Court                    (D.Ct. No. CIV-00-814-LH)
 Judge; JERRY GALVIN, Chief of Police, City of
 Albuquerque; JEFF ROMERO, District Attorney,
 Bernalillo County; B.A. CHAVEZ, Chief Clerk,
 Metropolitan Court; J. CASAUS, Clerk,
 Metropolitan Court; GORDON EDEN, Director,
 Motor Vehicle Division, New Mexico Taxation
 and Revenue; BRIAN C. WICKETTS, Police
 Officer, City of Albuquerque; PATRICIA A.
 MADRID, Attorney General for the State of New
 Mexico,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before SEYMOUR, McKAY, and BRORBY, Circuit Judges.



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


      *
          This order and judgment is not binding precedent except under the doctrines of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.
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.



      Appellant Leslie Leroy Jones, appearing pro se, appeals the district court’s

decision denying his petition filed pursuant to 28 U.S.C. § 2254 for lack of

subject matter jurisdiction. We deny Mr. Jones’ request for a certificate of

appealability and dismiss his appeal.



      In his § 2254 petition, Mr. Jones sought relief from a state agency’s

administrative suspension of his New Mexico driver’s license and from warrants

issued after his failure to appear for hearings in the City of Albuquerque

Metropolitan Court. Although Mr. Jones was not incarcerated, he contended he

was in “constructive custody” for purposes of habeas corpus jurisdiction. In

addition, Mr. Jones complained that the Metropolitan Court Clerk had refused to

instruct the proper state authority to reinstate his license and instead told him he

should “just plead guilty and pay the fines, costs and warrant fees” if he wanted to

get his driver’s license back.



      The district court sua sponte denied Mr. Jones’ petition for lack of subject


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matter jurisdiction after determining Mr. Jones was not in custody as required

under 28 U.S.C. § 2254(a). Thereafter, Mr. Jones filed a motion for

reconsideration, which the district court denied.



      On appeal, Mr. Jones continues to claim he is in “constructive custody” for

the purposes of habeas relief because he was “in court,” and officials suspended

his driver’s license and issued outstanding warrants. In support, Mr. Jones relies

on various Supreme Court decisions cases which he contends support his position

and notes the state authorities that refused to reinstate his driver’s license, have

threatened to arrest him if he fails to plead guilty and pay the assessed fines. In

addition, Mr. Jones claims the district court erred in dismissing his petition

because it: 1) “did not analyze [his] pro se petition alternatively as a civil rights

action under 42 U.S.C. [§] 1983,” and 2) committed fraud by failing to analyze

his case on the merits, provide him a copy of an unpublished opinion it cited, or

find that he is “in custody.” The remaining issues Mr. Jones raises on appeal

primarily concern the merits of his petition and the district court’s failure to

address those issues.



      “The determination of the district court’s subject matter jurisdiction is a

question of law which we review de novo.” United States v. Blackwell, 81 F.3d


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945, 947 (10th Cir. 1996) (quotation marks and citation omitted). We agree with

the district court’s conclusion that it lacked subject matter jurisdiction to grant

Mr. Jones habeas relief. As the district court correctly pointed out, suspension or

revocation of his driver’s license does not render Mr. Jones “in custody” for the

purposes of § 2254. See Lillios v. New Hampshire, 788 F.2d 60, 61 (1st Cir.

1986) (per curiam); Harts v. Indiana, 732 F.2d 95, 96-97 (7th Cir. 1984) (per

curiam); Westberry v. Keith, 434 F.2d 623, 624-25 (5th Cir. 1970) (per curiam).

Moreover, we agree that an arrest warrant for refusal to pay a fine does not

amount to “custody” within the meaning of § 2254. See Spring v. Caldwell, 692

F.2d 994, 999 (5th Cir. 1982). Because 28 U.S.C. § 2254(a) requires the

petitioner to be in “custody,” the district court lacked subject matter jurisdiction

over Mr. Jones’ petition and therefore, it could not consider the merits of Mr.

Jones’ claims therein.



      As to Mr. Jones’ other contentions on appeal, they simply lack merit. First,

nothing in the record suggests the district court somehow committed fraud

because it failed to analyze his case on its merits, provide him a copy of an

unpublished opinion, or find that he is “in custody.” Second, the Supreme Court

decisions cited by Mr. Jones either do not support his position or are

distinguishable on their facts. Lastly, the district court did not err by failing to


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construe Mr. Jones’ petition as a § 1983 complaint. A review of the record shows

Mr. Jones is not seeking civil damages against any state officials, but rather is

claiming suspension of his driver’s license was improper, as evidenced by his

request for reinstatement of his suspended driver’s licence. Even if Mr. Jones

sought declaratory relief and money damages against certain city and state

officials, the Supreme Court has held a claim is not cognizable under § 1983 if it

implies the invalidity of the punishment imposed. See Edwards v. Balisok, 520

U.S. 641, 648 (1997).



      In order for this court to grant a certificate of appealability, Mr. Jones must

make a substantial showing of the denial of a constitutional rights as required

under 28 U.S.C. § 2253(c)(2) and Slack v. McDaniel, 529 U.S. 473, 484-85

(2000). Mr. Jones fails to make the requisite showing.



      For these and substantially the same reasons articulated in the district

court’s June 28, 2000 Memorandum Opinion and Order of Dismissal, we deny Mr.

Jones’ request for a certificate of appealability and DISMISS his appeal.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge

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