                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   March 5, 2009
                      UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                  TENTH CIRCUIT                    Clerk of Court



 RICHARD A. NICHOLS,

                 Petitioner-Appellant,            Nos. 08-4159 and 08-4160
          v.                                             (D. of Utah)
 STATE OF UTAH,                                 (D.C. Nos. 2:08-CV-123-DAK
                                                  and 2:07-CV-00940-DAK)
                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


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



      Richard A. Nichols, appearing pro se, seeks separate certificates of

appealablility (COA) to appeal the district court’s denials of two petitions for writ

of habeas corpus pursuant to 28 U.S.C. § 2254. We decline to grant a COA on

either petition.




      *
         This order is not binding precedent except under the doctrines of law of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.
                                    Background

      The parties are familiar with the facts so we need not repeat them here. In

Nichols’s petitions for writ of habeas corpus, he challenges his 2002 Utah

criminal convictions stemming from his conduct during his employment as a sales

manager at Remember When, a car dealership selling classic cars on consignment.

His conviction was affirmed on direct appeal in 2003. See State v. Nichols, 76

P.3d 1173, 1175 (Utah App. 2003). Nichols has brought numerous actions in

federal court relating to his employment at Remember When and his subsequent

fraud and racketeering convictions. All of these cases have been dismissed. 1

      Before us now is Nichols’s appeal of the district court’s dismissal of two

petitions for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district

court dismissed both of these petitions for lack of jurisdiction.

      Specifically, the district court dismissed Nichols’s first habeas petition (at

issue in case number 08-4160 here) concluding that because Nichols was not “in

custody,” the court lacked jurisdiction over Nichols’s habeas petition. The court

also explained that even if it had jurisdiction, Nichols’s petition was not timely

under § 2244(d)(1)(A).



      1
       See State v. Nichols, 76 P.3d 1173, 1175 (Utah App. 2003). See, e.g.,
Nichols v. Baer, No. 08-CV-89 (D. Utah July 30, 2008); Utah v. Nichols, No. 07-
CV-419 (D. Utah July 9, 2007); Nichols v. Fletcher, No. 03-CV-868, 2007 WL
1795765 (D. Utah, June 20, 2007); Nichols v. Utah, No. 03-CV-1132 (D. Utah
June 15, 2006); Nichols v. Utah, No. 03-CV-1095 (D. Utah June 24, 2004).

                                         -2-
      As to Nichols’s second petition (at issue in case number 08-4159 here), the

district court determined that Nichols had not first obtained an order from the

appropriate court of appeals authorizing the district court to consider the petition,

as required for a second or successive habeas petition. See §§ 2244(b)(3)(A) and

2255(h). The court explained that when a second or successive habeas claim is

filed in district court without the required authorization from the circuit court, the

district court may transfer the matter to the circuit court if it determines it is in

the interest of justice to do so, or it may dismiss the petition for lack of

jurisdiction. See In re Cline, 531 F.3d 1249, 1251–53 (10th Cir. 2008). The

district court concluded it was not in the interest of justice to transfer the petition,

given that it failed because Nichols was not “in custody” and because it was

time-barred.

      The district court declined to grant a COA on either petition and Nichols

now seeks COAs from us.

                                        Analysis

      Although we view Nichols’s pro se filings liberally, see Hall v. Bellmon,

935 F.2d 1106, 1110 & n.3 (10th Cir. 1991), we decline to grant a COA on either

of his petitions and dismiss the appeals.

      As a preliminary matter, we note that federal courts have jurisdiction to

review habeas petitions from state court prisoners only when the petitioner is “in

custody.” § 2254(a) (“The Supreme Court, . . . a circuit judge, or a district court


                                            -3-
shall entertain an application for a writ of habeas corpus in behalf of a person in

custody pursuant to the 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.”)

(emphasis added). Moreover, a one-year limitation applies to an application for a

writ of habeas corpus by a person in custody pursuant to the judgment of a state

court. § 2244(d). Finally, when a petitioner seeks to file a successive or second

motion for habeas relief in district court, the petitioner is required to first obtain

authorization from the applicable appellate court. See §§ 2255(h) and 2244(b)(3).

      For an appeal of a district court’s order disposing of a habeas petition to

move forward, this court must grant the petitioner a COA. See § 2253(c)(1)(A).

This court may issue a COA only if the petitioner “has made a substantial

showing of the denial of a constitutional right.” § 2253(c)(2).

      “Where a district court has rejected the constitutional claims on the merits,

the showing required to satisfy § 2253(c) is straightforward: The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,

484 (2000). 2 Where, as here, though, the district court denies a habeas petition on



      2
         In the § 2254 context, where a state court has considered a claim on the
merits, the federal court must affirm unless the state court’s decision is “contrary
to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or was “based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” § 2254(d)(1) & (2).

                                           -4-
procedural grounds, “a COA should issue when the prisoner shows, at least, 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.” Id.

Thus, where the district court denies a habeas petition on procedural grounds, a

petitioner must show that reasonable jurists would find debatable both (1) whether

the petition states a valid claim of the denial of a constitutional right, and (2)

whether the district court was correct in its procedural ruling. Id.

      Having reviewed these standards and the district court’s orders, along with

the entire record, we deny Nichols’s requests for a COA on either petition and

dismiss the appeals.

      A. The First Petition, 08–4160

      Because the record does not demonstrate that Nichols was “in custody” at

the time he filed his petition, there is no federal jurisdiction over his claims. As

explained above, the writ of habeas corpus is limited to persons “in custody in

violation of the Constitution or laws or treaties of the United States.” § 2254(a).

This requirement is jurisdictional. See Foster v. Booher, 296 F.3d 947, 949 (10th

Cir. 2002). It “is designed to preserve the writ of habeas corpus as a remedy for

severe restraints on individual liberty.” Hensley v. Mun. Ct., 411 U.S. 345, 351

(1973).




                                           -5-
      To meet § 2254’s requirements, Nichols must have been “‘in custody’

under the conviction or sentence under attack at the time his petition [wa]s filed.”

Maleng v. Cook, 490 U.S. 488, 490–91 (1989). The custody requirement has been

construed liberally. See id. at 492. Indeed, the Supreme Court’s interpretation of

the “in custody” language has not required that a prisoner be physically confined

in order to challenge his sentence on habeas corpus. Id. at 491. In Jones v.

Cunningham, for example, the Court held that a petitioner who had been placed

on parole was still “in custody” under his unexpired sentence, in light of the

restraints and conditions of the parole order. 371 U.S. 236, 241–43 (1963). The

Court reasoned that the petitioner’s release from physical confinement was not

unconditional; instead, it was conditioned on his reporting regularly to his parole

officer, remaining in a particular community, residence, and job, and refraining

from certain activities. Id. at 242.

      In this case, the district court found that “Nichols is not in custody” and

that Nichols’s current address demonstrated that he was not in custody. R. Vol. 1,

Doc. 3, at 2. The judge explained that “there is no indication whatsoever that Mr.

Nichols has been in custody other than for five days in 2002.” Id. To the extent

the judge’s determination that Nichols was not “in custody” constituted a finding

of fact, we review it for clear error, see Clark v. Oklahoma, 468 F.3d 711, 714




                                         -6-
(10th Cir. 2006), and we see no clear error in the judge’s finding. We also see no

legal error in the determination. 3

      We need not reach the issue of whether the petition alleges a debatable

constitutional question because the district court was correct in its procedural

ruling, and reasonable jurists would not find debatable whether the procedural

ruling was correct. Slack, 529 U.S. at 484.

      In any event, the petition would be barred as untimely. The Utah Supreme

Court denied certiorari on Nichols’s case in December 2003. See Utah v. Nichols,

84 P.3d 239 (Utah 2003). It does not appear from the record that Nichols sought

certiorari in the United States Supreme Court. Assuming he did not, his



      3
         Nichols contends that warrants for his arrest were issued in 2003, 2007
and 2008 for failure to appear at review hearings regarding his progress towards
making restitution. These arrests do not establish that Nichols was “in custody,”
however, and Nichols does not provide evidence in this record—concerning these
arrests or otherwise—to demonstrate the district court erred in finding that he was
not “in custody” for habeas purposes when he filed his habeas petitions.

       Indeed, Nichols argues that he was not on probation in 2007 and 2008: for
example, he asserts that in June 2007 he was sent a notice by the Third District
Court of Utah instructing him to answer to charges of failure to pay restitution in
violation of probation, and, he argues, he did not do so “because [he] was not on
probation.” Aplt. Br. at 7 (No. 08-4160). The arrests could demonstrate that
Nichols still had an outstanding monetary obligation. However, “the payment of
restitution or a fine, absent more, is not the sort of ‘significant restraint on
liberty’ contemplated in the ‘custody’ requirement.” Erlandson v. Northglenn
Mun. Ct., 528 F.3d 785, 788 (10th Cir. 2008) (citing Obado v. New Jersey, 328
F.3d 716, 717–18 (3d Cir. 2003) (holding that restitutionary payments being made
by a petitioner after he completed his state prison sentence did not satisfy the
custody requirement of the federal habeas corpus statute when he was no longer
subject to the terms of his probation)).

                                         -7-
conviction became final when the time to seek certiorari expired, 90 days after the

entry of judgment in Utah in December 2003. See Rule 13.1, Rules of the

Supreme Court. Nichols filed his habeas petitions, however, in December 2007

and February 2008. Nichols thus filed his habeas petitions long after a year from

the date his conviction became final. See § 2244(d)(1).

      Nichols argues that the judgment in his case was not final: he contends the

case is still ongoing. However, a conviction becomes final for these purposes

upon the completion of “direct review.” Cf. United States v. Burch, 202 F.3d

1274, 1277 (10th Cir. 2000) (“[I]n the context of the AEDPA, § 2255’s use of

‘final’ plainly means ‘a decision from which no appeal or writ of error can be

taken.’”) (citation omitted). Here, a year from the date direct review was

completed had expired by December 2007.

      Finally, Nichols argues that the statute of limitations should have been

tolled under the “Doctrine of Fraudulent Concealment.” R. Vol. 1, Doc. 5. But

he does not support his argument, and there is no evidence in the record to

support an argument that he is raising a claim concerning which “the factual

predicate” could not have been discovered “through the exercise of due diligence”

within the time limitation, see § 2244(d)(1)(D), or that the government impeded

him from filing an application. See § 2244(d)(1)(B).

      We thus deny the request for a COA.




                                        -8-
      B. The Second Petition, 08-4159

      Where a petitioner files a successive habeas petition in district court

without first seeking authorization in the appellate court, the petition filed in

district court is unauthorized. See, e.g, In re Cline, 531 F.3d at 1251–52. Once a

district court determines that a petition is unauthorized, the court is faced with

two options. First, if the court determines it is in the interest of justice to do so,

it is entitled to transfer the matter to us for a determination of whether to permit

successive habeas proceedings. See id. at 1252. Otherwise, the district court

must dismiss the petition for lack of jurisdiction because the court has no

authority to entertain an unauthorized second or successive habeas motion. See

id.

      We find that reasonable jurists would not debate whether the district court’s

dismissal of Nichols’s second petition was a correct procedural ruling. It is clear

that Nichols’s filing was a habeas petition: it is styled as such, and in it Nichols

urges the court to vacate convictions that, according to him, were illegally

obtained. Additionally, it is clear that this filing constituted Nichols’s second or

successive habeas petition. Nichols argues that he “did not file a successive writ

in Feb[ruary] on these issues presented to the district court for review. Petitioner

filed one writ and that was in Feb[ruary] 2008 not in 2007.” Aplt. Br. at 10.

However, we have before us two habeas filings by Nichols: he filed the first in

December of 2007 and the second in February of 2008. Thus, it is clear that


                                           -9-
Nichols’s 2008 petition, at issue in case No. 08-1459, was a second or successive

habeas petition. 4

       Accordingly, we DENY Nichols’s application for a COA.

                                    Conclusion

       For the foregoing reasons, we DENY Nichols’s applications for COAs and

dismiss the appeals. We also DENY his requests to proceed in forma pauperis.

                                                    Entered for the Court

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




       4
        If Nichols had actually filed only one writ, and it was not a second or
successive habeas petition, then it was still properly dismissed for the reasons
discussed above concerning the earlier 2007 petition.

                                        -10-
