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

                              TENTH CIRCUIT                    February 25, 2016

                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff-Appellee,
                                                       No. 15-4144
 v.                                         (D.C. Nos. 2:14-CV-00841-RJS and
                                                  2:02-CR-00423-PGC-1)
 WALTER E. REYMUNDO-LIMA,                                (D. Utah)
       Defendant-Appellant.



      ORDER DENYING A CERTIFICATE OF APPEALABILITY
               AND DISMISSING THE APPEAL


Before GORSUCH, O’BRIEN, and BACHARACH, Circuit Judges.



      Mr. Walter Reymundo-Lima was convicted and sentenced in 2002 on

federal charges of transporting undocumented aliens. After this sentence

was served, he was removed to El Salvador. He later reentered the United

States, leading to charges of illegal reentry. To defend against this charge,

Mr. Reymundo-Lima moved under 28 U.S.C. § 2255 for vacatur of the

2002 sentence. The district court denied the motion based on the absence

of jurisdiction, concluding that Mr. Reymundo-Lima was no longer “in

custody” on the 2002 sentence.
      Mr. Reymundo-Lima wants to appeal. To do so, he requests a

certificate of appealability, arguing that he remained “in custody” for

purposes of 28 U.S.C. § 2255 because he continues to suffer consequences

from the 2002 conviction. In our view, no reasonable jurist could conclude

that Mr. Reymundo-Lima remained in custody on his 2002 conviction when

he filed the motion to vacate. Thus, we deny Mr. Reymundo-Lima’s request

for a certificate of appealability and dismiss the appeal.

I.    Mr. Reymundo-Lima can appeal only if he justifies a certificate of
      appealability.

      To appeal, Mr. Reymundo-Lima needs a certificate of appealability.

28 U.S.C. § 2253(c)(1)(B). This certificate is available only if Mr.

Reymundo-Lima shows that reasonable jurists could find the district

court’s ruling debatable or wrong. Laurson v. Leyba, 507 F.3d 1230, 1232

(10th Cir. 2007).

II.   Supreme Court precedent forecloses Mr. Reymundo-Lima’s
      argument that he remains “in custody” on the 2002 conviction.

      A prisoner must be “in custody under sentence of a [federal] court”

when filing a motion to vacate a sentence. 28 U.S.C. § 2255(a). Thus, Mr.

Reymundo-Lima must show that he was “in custody” under the 2002

sentence when he filed his motion to vacate. Broomes v. Ashcroft, 358 F.3d

1251, 1254 (10th Cir. 2004), abrogated on other grounds, Padilla v.

Kentucky, 559 U.S. 356 (2010).



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      Mr. Reymundo-Lima acknowledges that when he moved for vacatur,

he had already served his sentence for the 2002 conviction. See Appellant’s

Br. at 27. But Mr. Reymundo-Lima argues that because a new illegal-

reentry charge resulted from the 2002 conviction, he continues to bear a

“substantial stake” in the 2002 conviction, rendering him “in custody” for

that conviction. Appellant’s Br. at 28 (citing Carafas v. LaValle, 391 U.S.

234 (1968)).

      Mr. Reymundo-Lima’s position is foreclosed by Maleng v. Cook, 490

U.S. 488 (1989) (per curiam). There the Supreme Court held that “once the

sentence imposed for a conviction has completely expired, the collateral

consequences of that conviction are not themselves sufficient to render an

individual ‘in custody’ for the purposes of a habeas attack upon it.” Id. at

492. Under Maleng, a causal relationship between the new charges and the

2002 conviction does not mean that Mr. Reymundo-Lima is “in custody” on

that conviction.

      Because Mr. Reymundo-Lima has already served his sentence for the

2002 conviction, he is no longer “in custody” on the 2002 conviction and

cannot challenge that conviction under § 2255. See id.; see also

Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394, 401 (2001) (holding

that because the petitioner “is no longer serving the sentences imposed

pursuant to his [prior] convictions . . . [he] cannot bring a federal habeas

petition directed solely at those convictions”).

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      In these circumstances, we conclude that reasonable jurists could not

debate the correctness of the district court’s holding. Accordingly, we

decline to issue a certificate of appealability and dismiss the appeal.


                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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