                                                                         FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                               September 21, 2010
                               TENTH CIRCUIT
                                                              Elisabeth A. Shumaker
                                                                  Clerk of Court

 PATRICK THELEN,

             Petitioner-Appellant,                      No. 10-5063
 v.                                                    (N.D. of Okla.)
 STATE OF OKLAHOMA, and W. A.              (D.C. No. 4:09-CV-00767-CVE-TLW)
 SHERROD, Warden,

             Defendants-Appellants.


                                     ORDER


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Appellant’s Combined Petition for Rehearing and Rehearing En Banc filed

August 23, 2010, is granted in part. The revised attached Order Denying a

Certificate of Appealability is filed nunc pro tunc to August 13, 2010.


                                                   Entered for the Court




                                                   Elisabeth A. Shumaker
                                                   Clerk of Court
                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 August 13, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                               TENTH CIRCUIT



 PATRICK THELEN,

             Petitioner-Appellant,                      No. 10-5063
 v.                                                    (N.D. of Okla.)
 STATE OF OKLAHOMA, and W. A.              (D.C. No.4:09-CV-00767-CVE-TLW)
 SHERROD, Warden,

             Defendants-Appellants.


           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **


      Patrick Thelen, a federal prisoner appearing pro se, seeks a certificate of

appealability (COA) to appeal from the dismissal of his habeas petition brought

pursuant to 28 U.S.C. § 2241. The district court dismissed the petition for lack of

jurisdiction. Having jurisdiction pursuant to 28 U.S.C. § 1291, we DENY

Thelen’s request for a COA and DISMISS this appeal.



      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                  I. Background

      Thelen pleaded guilty in 1986 in Oklahoma state court on marijuana

charges. As a part of the plea agreement, the state court withheld a finding of

guilt and deferred Thelen’s sentencing for five years. In 1988, the State of

Oklahoma filed an application to accelerate judgment, and Thelen followed that

two years later with a habeas petition to the state court requesting the court

resolve the application to accelerate. Although it appears from the record the

state court never ruled on Thelen’s petition or the government’s application to

accelerate, the government eventually filed a motion to withdraw the application

to accelerate on March 4, 1998. The state court granted that motion.

      In separate proceedings in the federal District Court for the Eastern District

of Michigan, a jury convicted Thelen in June of 1997 of two counts of drug

trafficking and one count of being a felon in possession of a firearm. See Thelen

v. United States, F. App’x 61, 62 (6th Cir. 2005). During sentencing, the federal

district court found Thelen’s state court conviction was a “prior felony

conviction” for purposes of sentencing him as a career offender. See USSG

§ 4B1.2 cmt. n.1 (1997).

      Thelen, now serving his federal sentence in Illinois, filed this petition for a

writ of habeas corpus in 2009 challenging the state court conviction and arguing it

was not properly expunged. Although he filed it as a 28 U.S.C. § 2254 petition,

the district court correctly characterized it as a petition pursuant to 28 U.S.C.

                                         -2-
§ 2241 because Thelen was not in state custody and his claims did not challenge

the validity of his guilty plea in state court but the execution of his sentence. The

district court then denied Thelen’s petition for lack of jurisdiction, noting Thelen

was no longer in custody under the state sentence he was challenging.

                                   II. Discussion

      Although a petitioner ordinarily does not need a COA to appeal a district

court’s denial of a habeas petition brought pursuant to § 2241, we have held a

COA is necessary “whenever ‘the detention complained of [in the petition] arises

out of process issued by a State court.’” Montez v. McKinna, 208 F.3d 862, 867

(10th Cir. 2000) (quoting 28 U.S.C. § 2253(c)(1)(A)). Thelen complains the state

court has not provided proper process regarding his deferred state sentence. A

COA is therefore necessary.

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When, as is the case

here, the district court denies the petition on procedural grounds, we will issue a

COA only if the petitioner demonstrates “that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). We conclude the district court was correct in its procedural ruling that it

lacked jurisdiction to consider Thelen’s petition.

                                          -3-
      District courts have “jurisdiction to entertain petitions for habeas relief

only from persons who are ‘in custody in violation of the Constitution or laws or

treaties of the United States.’” Maleng v. Cook, 490 U.S. 488, 490 (1989)

(quoting 28 U.S.C. § 2241(c)(3)). The Supreme Court has “interpreted the

statutory language as requiring that the habeas petitioner be ‘in custody’ under the

conviction or sentence under attack at the time his petition is filed.” Id. at

490–91.

      Thelen apparently challenges the execution of his 1986 deferred sentence,

claiming that it has not been properly expunged from official records. See O KLA .

S TAT . A NN . tit. 22, § 991c(C) (West 2003). But nothing in the record indicates

Thelen is in custody under the 1986 conviction. Instead, the five-year deferred

sentence expired long before Thelen filed this petition, so he cannot claim to be in

literal custody, and the collateral consequences of convictions such as these “are

not themselves sufficient to render an individual ‘in custody’ for the purposes of a

habeas attack upon it.” Maleng, 490 U.S. at 492. Further, even if the 1986

conviction enhanced Thelen’s 1997 federal sentence, the Supreme Court has held

that a person is not in custody “simply because [a prior and expired state court]

conviction has been used to enhance the length of a current or future sentence

imposed for a subsequent conviction.” Id. at 491. The district court was correct

to conclude it lacked jurisdiction to consider Thelen’s habeas claims.




                                          -4-
      To the extent Thelen challenges the enhancement of his federal sentence by

the deferred state sentence, a § 2241 petition filed in the Northern District of

Oklahoma is not the appropriate method. As we have previously explained, “A

petition under 28 U.S.C. § 2241 attacks the execution of a sentence rather than its

validity and must be filed in the district where the prisoner is confined. . . . A 28

U.S.C. § 2255 petition attacks the legality of detention, and must be filed in the

district that imposed the sentence.” Bradshaw v. Story, 86 F.3d 164, 166 (10th

Cir. 1996) (emphasis added) (citations omitted). Thus, if Thelen wishes to

challenge the enhancement of his federal sentence by the state court conviction,

the proper vehicle for him to do so is a § 2255 petition filed in the Eastern

District of Michigan.

                                   III. Conclusion

      For the foregoing reasons, we DENY Thelen’s request for a COA, and

DISMISS this appeal.

                                                 ENTERED FOR THE COURT

                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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