                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         MAY 23 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 RANDALL D. TOMLINSON,

          Petitioner-Appellant,
 v.
                                                       No. 01-1019
                                                   (D.C. No. 00-Z-1529)
 JAKE MENDEZ, Warden, USP
                                                         (D. Colo.)
 Allenwood; ATTORNEY GENERAL
 OF THE STATE OF COLORADO,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before EBEL, KELLY and LUCERO, Circuit Judges.


      Petitioner-Appellant Randall Tomlinson (“Tomlinson”) filed a Petition for

a Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28

U.S.C. §2254 on August 3, 2000. Tomlinson is not, however, currently in state

custody but is instead currently incarcerated in a federal prison in Beaumont,



      *
         After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
Texas, serving a 300-month federal sentence for kidnaping, see 18 U.S.C. 1201. 1

In his Petition, Tomlinson alleged that a Colorado state court conviction for

second degree burglary, which was entered following a guilty plea in 1991 and

which was used in 1994 to enhance his current federal sentence pursuant to

United States Sentencing Guidelines §4B1.1, was obtained as the result of

ineffective assistance of counsel. (See Petition at 3, 7.) Specifically, he argued

that his guilty plea on the state burglary charge was not knowing and voluntary

because he was not informed by his attorney that the state conviction could later

be used to enhance a federal sentence. 2 (See id. at 5.) Tomlinson has completely

served the state sentence that he presently seeks to attack as unconstitutional, and

is challenging it here based upon its use to enhance his current federal sentence.

(See Petition at 7.)




      1
        At the time the initial Petition was filed in the district court, Tomlinson
was incarcerated in a federal prison located in White Deer, Pennsylvania serving
the same sentence for which he is currently incarcerated.
      2
        These arguments were presented to the Colorado District Court for the
County of El Paso in a motion for post-conviction relief filed in September 1997,
but were rejected on January 12, 1998. See State v. Tomlinson, No. 90CR2343,
Division No. 3 (Colo. Dist. Ct. El Paso County, Jan. 12, 1998) (unpublished
order). The Colorado Court of Appeals later affirmed the denial of Tomlinson’s
claims on their merits, see State v. Tomlinson, No. 98CA0226 (Colo. Ct. App.
Nov. 4, 1999) (unpublished opinion), and certiorari was denied by the Colorado
Supreme Court on April 24, 2000, see Tomlinson v. State, No. 00SC66 (Colo.
Apr. 24, 2000).

                                        -2-
      The federal district court denied Tomlinson’s Petition on November 8,

2000, finding that while Tomlinson could file a motion attacking the validity of

the prior, expired state sentence in the context of its use to enhance his current

federal sentence, only the federal district court that actually sentenced Tomlinson

on the federal charges had jurisdiction to hear such a motion. See Tomlinson v.

Mendez, et al., No. 00-ES-1529, slip op. at 3 (D. Colo. Nov. 8, 2000)

(unpublished order) (citing Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir.

1996)). Because Tomlinson’s federal sentence was imposed by a federal district

court in Lincoln, Nebraska, the jurisdiction in which he was both indicted for and

pled guilty to the kidnaping charge, the district court determined that it was “not a

proper forum for Mr. Tomlinson’s challenge to the validity of his federal

sentence.” Id.

      Tomlinson then filed a request for a certificate of appealability (“COA”)

and for leave to proceed on appeal in forma pauperis, both of which were rejected

by the district court. Subsequently, Tomlinson filed with this court another

request for a COA and for permission to proceed on appeal in forma pauperis.

      Because the Petition was filed after April 24, 1996, the effective date of the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), AEDPA’s provisions

apply to this case. See, e.g., Rogers v. Gibson, 173 F.3d 1278, 1282 n.1 (10th

Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320, 336 (1997)). Under the


                                         -3-
provisions of AEDPA, a state prisoner appealing a district court’s denial of

habeas relief under §2254 must obtain a COA before we may consider the merits

of his claim. See 28 U.S.C. §2253(c)(1)(A), (B). A court may issue a COA “only

if the applicant has made a substantial showing of a denial of a constitutional

right.” See 28 U.S.C. §2253(c)(2). Because the district court denied Petitioner’s

COA, we must first decide whether to issue Petitioner’s requested COA before we

may address his claims on the merits. See United States v. Simmonds, 111 F.3d

737, 740-41 (10th Cir. 1997).

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

have jurisdiction to consider Tomlinson’s §2254 Petition and that Petitioner’s

request for a COA must therefore be denied.

      Section 2254 states that the federal courts “shall entertain an application

for a writ of habeas corpus in behalf of a person in custody pursuant to a

judgment of a State court only on the ground that he is in custody in violation of

the Constitution or laws or treaties of the United States.” See 28 U.S.C. §2254(a)

(emphasis added). Tomlinson is not currently “in custody pursuant to a judgment

of a State court,” but is instead in federal custody pursuant to a judgment of the

federal district court in Lincoln, Nebraska. He is therefore not entitled to federal

habeas relief under §2254 because he has not satisfied the custodial prerequisite

necessary to confer jurisdiction under that statute. See Charlton v. Morris, 53


                                         -4-
F.3d 929, 929 (8th Cir. 1995) (holding that a federal prisoner currently serving a

federal sentence which had been enhanced by an expired, prior state court

conviction “was no longer ‘in custody’ for his state conviction” and therefore

could not obtain habeas relief pursuant to §2254) (citing Maleng v. Cook, 490

U.S. 488, 492 (1989) (per curiam) (stating that 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)).

      It is true that we are obligated to construe pro se filings liberally, see

Haines v. Kerner, 404 U.S. 519, 520 (1972), and that it might be possible for us to

recharacterize Tomlinson’s Petition as one brought under 28 U.S.C. §2255 since

he is currently in federal custody, see Ryan v. United States, 214 F.3d 877, 884

(7th Cir. 2000) (Wood, J., dissenting) (“[The defendant] is a federal prisoner ‘in

custody’ under a federal sentence [which was enhanced based upon a challenged

state conviction]. His complaint pertains to the length of that sentence, which

means the statute he can and must use [to challenge the sentence] is §2255.”).

We nevertheless decline to recharacterize the Petition in that manner for two

reasons. First, we have generally disfavored the recharacterization of non-§2255

motions filed by prisoners as §2255 motions, even where the prisoner may be

entitled to relief under §2255 but is clearly not entitled to relief under whatever

cause of action he has asserted, because of the concern that such


                                          -5-
recharacterization might inadvertently result in a waiver of the prisoner’s other

claims for habeas relief. See United States v. Kelly, 235 F.3d 1238, 1242 (10th

Cir. 2000) (“[W]e have declined to construe a pro se Rule 32 motion as a §2255

motion where it was clear the defendant did not intend his motion to be so

construed, largely out of concern that a subsequent §2255 motion would be

considered successive.”); United States v. Miller, 197 F.3d 644, 649 (3d Cir.

1999) (“With AEDPA in place, the practice of liberally construing post-

conviction motions as §2255 petitions can, in the absence of cautionary or

educational measures, impair the ability of inmates to challenge their convictions

on collateral review.”). Second, and more important, even if Tomlinson’s Petition

were recharacterized as a §2255 petition rather than a §2254 petition, he would

not be entitled to relief due to the Supreme Court of the United States’ recent

opinion in Daniels v. United States, __ U.S. __, __, 121 S. Ct. 1578, 1584 (2001),

in which the Court held that §2255 may not be used to collaterally attack an

expired state conviction that was used to enhance a federal prisoner’s current

federal sentence. 3


      3
         We also note that Tomlinson would not be entitled to relief under §2255
from this court in any event because a §2255 Petition challenging the legality of a
federal prisoner’s sentence must be filed with the same district court that imposed
the sentence under attack. See 28 U.S.C. §2255 (“A prisoner in custody under
sentence of a court established by an Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in violation of the
                                                                       (continued...)

                                        -6-
      For the foregoing reasons, we find that Tomlinson has not “made a

substantial showing of a denial of a constitutional right” and thus decline to issue

a COA in this case. Given the recency of the Supreme Court’s Daniels opinion

foreclosing relief under §2255, 4 however, we find that Tomlinson’s Petition was

not frivolous and therefore grant Tomlinson’s motion to proceed on appeal in

forma pauperis despite our decision to deny a COA in this case.

      This appeal is DISMISSED.

                                       ENTERED FOR THE COURT


                                       David M. Ebel
                                       Circuit Judge




      3
       (...continued)
Constitution or laws of the United States . . . may move the court which imposed
the sentence to vacate, set aside or correct the sentence.”) (emphasis added).
Here, Tomlinson filed his Petition with the United States District Court for the
District of Colorado, which was not the court that imposed the sentence to which
Tomlinson is presently objecting.
      4
         Prior to the Court’s decisions in Daniels and in Lackawanna County Dist.
Attorney v. Coss, __ U.S. __, __, 121 S. Ct. 1567, 1569 (2001) (extending the
holding in Daniels to preclude state prisoners’ collateral attacks under §2254 to
expired state convictions used to enhance their current state sentences), the Tenth
Circuit had allowed prisoners to collaterally attack prior, expired state convictions
that had been used to enhance sentences under which the petitioner was currently
incarcerated. See Collins v. Hesse, 957 F.2d 746, 747 (10th Cir. 1992) (petition
under §2241); Gamble v. Parsons, 898 F.2d 117, 118-19 (10th Cir. 1990) (petition
under §2254).

                                         -7-
