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

                            FOR THE TENTH CIRCUIT                              July 17, 2020
                        _________________________________
                                                                           Christopher M. Wolpert
                                                                               Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                           No. 19-2194
                                                 (D.C. Nos. 1:18-CV-01070-JB-JHR and
 JUANITA ROIBAL-BRADLEY,                               1:15-CR-03253-JB-GBW)
                                                               (D. N.M.)
       Defendant - Appellant.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

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

      Juanita Roibal-Bradley seeks a certificate of appealability (COA) to appeal the

district court’s denial of her 28 U.S.C. § 2255 motion. For the reason discussed

below, we deny Roibal-Bradley’s request and dismiss this matter.

      In 2016, Roibal-Bradley pleaded guilty to one count of failure to disclose an

event affecting the continued right to Social Security benefits payments and twelve

counts of wire fraud. See 18 U.S.C. § 1343; 42 U.S.C. § 408(a)(4)(1). The district

court sentenced her to 37 months in prison and ordered her to pay $128,771.35 in




      *
         This order is not binding precedent except under the doctrines of law of the
case, res judicata, and collateral estoppel. But it may be cited for its persuasive value.
See Fed. R. App. P. 32.1; 10th Cir. R. 32.1.
restitution. A panel of this court denied her appeal. See United States v. Roibal-

Bradley, 716 F. App’x 772, 775 (10th Cir. 2017) (unpublished).

      Roibal-Bradley then filed a § 2255 motion, arguing that she received

ineffective assistance of counsel at various stages of the proceedings. She asked the

district court to (1) reduce the terms of her imprisonment and supervised release and

(2) either vacate or reduce the amount of the restitution order. The district court

denied the motion in its entirety. Specific to her restitution order challenge, the

district court concluded that it lacked subject-matter jurisdiction to consider her

claim because a habeas motion must challenge the legality of custody, and a

restitution order is not custodial within the meaning of § 2255. See Erlandson v.

Northglenn Mun. Ct., 528 F.3d 785, 788 (10th Cir. 2008).

      Roibal-Bradley now seeks to appeal only the portion of the district court’s

order relating to restitution. But before she may do so, Roibal-Bradley must obtain a

COA. 28 U.S.C. § 2253(c)(1)(B). Where, as here, the district court dismisses a

§ 2255 motion on a procedural basis, an appellant must show both that reasonable

jurists could debate “whether the district court was correct in its procedural ruling”

and “whether the petition states a valid claim of the denial of a constitutional right.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). We begin, and end, by considering the

district court’s procedural ruling dismissing Roibal-Bradley’s motion for lack of

subject-matter jurisdiction. See id. at 485.

      We held in Erlandson “that ‘[t]he payment of restitution or a fine, absent

more, is not the sort of “significant restraint on liberty” contemplated in the

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“custody” requirement of the federal habeas statutes.’” 528 F.3d at 788 (alteration in

original) (quoting Obado v. New Jersey, 328 F.3d 716, 718 (3d Cir. 2003)). Roibal-

Bradley argues that Erlandson does not apply here because, unlike the petitioner in

Erlandson, she was incarcerated when she filed her § 2255 motion, which challenged

both the restitution order and her prison sentence. But the custodial requirement is

jurisdictional, and it must be met for each claim. See Mays v. Dinwiddie, 580 F.3d

1136, 1139 (10th Cir. 2009). That is, simply being in prison for a separate,

unchallenged sentence at the time of filing a habeas motion does not automatically

satisfy the requirement. See id.; Rosales v. Milyard, 541 F. App’x 874, 880 (10th Cir.

2013) (unpublished) (holding petitioner did not meet custodial requirement on habeas

claims related to restitution order where petitioner was sentenced to prison and

restitution on same conviction, challenged both in 28 U.S.C. § 2254 petition, and was

serving prison term when he filed habeas petition). And here, Roibal-Bradley

challenges only the legality of the restitution order, not her imprisonment. Thus,

Erlandson controls, and the district court correctly followed our precedent.

      Moreover, Roibal-Bradley “recognizes that her argument runs against existing

authority from this [c]ircuit.” Aplt. Br. 11. Instead, she urges us to follow the “better

reasoned authority” in Weinberger v. United States, 268 F.3d 346, 351 n.1 (6th Cir.

2001), the only circuit that has found jurisdiction over a § 2255 motion challenging a

restitution order. Aplt. Br. 11, 22–23. But as Roibal-Bradley also acknowledges, we

are bound by prior panel rulings absent en banc reconsideration or an intervening



                                            3
Supreme Court decision. United States v. Springer, 875 F.3d 968, 975 (10th Cir.

2017).

         Because reasonable jurists could not debate “whether the district court was

correct in its procedural ruling,” we need not decide whether they could debate that

the motion states a constitutional claim. Slack, 529 U.S. at 484. Accordingly, we

deny Roibal-Bradley’s request for a COA and dismiss this matter.


                                             Entered for the Court


                                             Nancy L. Moritz
                                             Circuit Judge




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