                                                           FILED
                                               United States Court of Appeals
                UNITED STATES COURT OF APPEALS         Tenth Circuit

                       FOR THE TENTH CIRCUIT                         July 11, 2016
                     _________________________________
                                                                 Elisabeth A. Shumaker
                                                                     Clerk of Court
LINDSAY T. HARDING,

       Petitioner - Appellant,

v.                                                 No. 16-1161
                                          (D.C. No. 1:15-CV-02774-LTB)
RICHARD F. RAEMISCH,                              (D. Colorado)
CYNTHIA COFFMAN, The
Attorney General of the State of
Colorado,

       Respondents - Appellees.
                    _________________________________

                                 ORDER *
                     _________________________________

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.
                _________________________________


      Mr. Lindsay Harding was convicted of a misdemeanor in Colorado

state court. After completing his sentence for that conviction, he filed a

federal habeas petition. The district court ordered dismissal based on a



*
      We do not believe oral argument would be helpful. As a result, we
are deciding the appeal based on the briefs. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G).

      This order does not constitute binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. But our
order and judgment may be cited for its persuasive value under Fed. R.
App. P. 32.1(a) and 10th Cir. R. 32.1(A).
lack of jurisdiction because Mr. Harding was no longer “in custody” when

he filed this habeas action.

      Mr. Harding now seeks to appeal and to avoid prepayment of the

filing fee. We can

           entertain the appeal only if the district court’s disposition
            was reasonably debatable 1 and

           relieve Mr. Harding of prepayment only if he had a good-
            faith basis to appeal. 2

Mr. Harding’s appeal points are not reasonably debatable, and he has not

presented a good-faith basis to appeal. As a result, we dismiss the appeal

and deny the request to avoid prepaying the filing fee.

                                    * * *

      In a habeas action brought by a state prisoner, the district court has

jurisdiction only if the prisoner is “in custody.” 28 U.S.C. § 2254(a); see

Mays v. Dinwiddie, 580 F.3d 1136, 1138-39 (10th Cir. 2009) (stating that

the custodial requirement is jurisdictional). A habeas petitioner is no

longer “in custody” under a conviction if the sentence has “fully expired.”

Maleng v. Cook, 490 U.S. 488, 492 (1989).




1
      28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
2
      28 U.S.C. § 1915(a)(3); Rolland v. Primesource Staffing, LLC, 497
F.3d 1077, 1079 (10th Cir. 2007).

                                       2
      In November 2008, Mr. Harding was convicted of the misdemeanor

that he challenges in this habeas action. Mr. Harding completed the

sentence in May 2010 for this misdemeanor conviction.

      In June 2010, Mr. Harding was convicted of multiple felony charges

and was sentenced to a lengthy prison term in an unrelated case.

      In December 2015, Mr. Harding filed this habeas petition,

challenging his November 2008 misdemeanor conviction. But because his

sentence had expired in May 2010, Mr. Harding was no longer “in custody”

for his misdemeanor conviction. See Maleng v. Cook, 490 U.S. 488, 492

(1989).

      Mr. Harding could be considered “in custody” if his second sentence

had run consecutively with his first sentence. Garlotte v. Fordice, 515 U.S.

39, 45-46 (1995). But Mr. Harding’s second sentence did not run

consecutively with his first sentence; his first sentence expired in May

2010, and his second sentence was not imposed until the following month.

      Though Mr. Harding was no longer serving the sentence for the

misdemeanor when he sought habeas relief, he insists that he is actually

innocent of the charge. But Mr. Harding did not present this argument in

district court when ordered to address jurisdiction. As a result, the district

court cannot be faulted for failing to consider the claim of actual

innocence. See Dockins v. Hines, 374 F.3d 935, 940 (10th Cir. 2004)



                                       3
(declining to consider an appeal point raised for the first time in a request

for a certificate of appealability).

      In these circumstances, all reasonable jurists would conclude that the

habeas action was properly dismissed for lack of jurisdiction. Accordingly,

we (1) decline to issue a certificate of appealability and (2) dismiss the

appeal.

      In addition, we require Mr. Harding to prepay the filing fee because

he has not presented a good-faith basis for the appeal. Rolland v.

Primesource Staffing, LLC, 497 F.3d 1077, 1079 (10th Cir. 2007).

Prepayment of the filing fee is required within 21 days of this order.


                                       Entered for the Court



                                       Robert E. Bacharach
                                       Circuit Judge




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