                                                                              FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                          July 16, 2009
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                          Clerk of Court
                                    TENTH CIRCUIT

 DELBERT McNEIL, JR.,

          Petitioner - Appellant,

 v.                                                       No. 08-6271
                                                          (W.D. Okla.)
 BRUCE HOWARD, Warden,                           (D.Ct. No. 5:07-CV-01415-HE)

          Respondent - Appellee.



            ORDER DENYING CERTIFICATE OF APPEALABILITY,
            DENYING MOTION TO PROCEED IN FORMA PAUPERIS
                      AND DISMISSING APPEAL


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.


      Delbert McNeil, an Oklahoma state prisoner proceeding pro se, 1 wants to

appeal from the district court’s dismissal of his petition for writ of habeas corpus

brought pursuant to 28 U.S.C. § 2254. Because McNeil has failed to make “a

substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), we deny his request for a certificate of appealability (COA) and

dismiss this matter.




      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
                                  I. BACKGROUND

      On September 30, 2005, a jury convicted McNeil of resisting an officer, a

misdemeanor offense. On October 5, 2005, the court sentenced McNeil to one

year imprisonment and imposed a $500 fine. The sentence was to run concurrent

with a 21-year sentence he previously received for manufacturing

methamphetamine. The Oklahoma Court of Criminal Appeals (OCCA) affirmed.

McNeil filed a petition for post-conviction relief in state court. The state court

denied the petition and the OCCA affirmed.

      On December 17, 2007, McNeil filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 with respect to his resisting an officer conviction.

The case was assigned to a magistrate judge who recommended the petition be

dismissed for lack of subject matter jurisdiction because it did not appear McNeil

satisfied the “in custody” requirement of § 2254. 2 In the alternative, he

recommended the petition be denied on the merits. McNeil objected to the

magistrate judge’s merits determination; he did not object to the magistrate

judge’s “in custody” analysis. 3 The district court agreed with the magistrate

      2
        The State did not raise § 2254’s “in custody” requirement. Nevertheless, the
magistrate judge properly raised it sua sponte. See Hardiman v. Reynolds, 971 F.2d 500,
502 (10th Cir. 1992) (exception to general rule that court should not raise a defense sua
sponte exists for defenses implicating court’s subject matter jurisdiction).
      3
        We have adopted a “firm waiver rule” whereby “the failure to make timely
objection to the magistrate’s findings or recommendations waives appellate review of
both factual and legal questions.” Moore v. United States, 950 F.2d 656, 659 (10th Cir.
1991). “This rule does not apply, however, when (1) a pro se litigant has not been

                                           -2-
judge that McNeil’s petition should be dismissed for lack of subject matter

jurisdiction:

      Although the record in this respect is not complete, no basis appears
      for concluding that [McNeil]—who was sentenced to one year in jail
      on the subject charge, to run concurrently with other charges—is now
      in custody in connection with the conviction he attacks here or that
      his present custodial status on other charges is extended or otherwise
      affected by the conviction here in issue. As a result, this court lacks
      jurisdiction to entertain his petition.

(R. Vol. 1 at 220-21 (citations omitted).) McNeil filed a timely notice of appeal.

The district court construed the notice as a request for a COA and denied it.

McNeil renews his request for a COA with this Court.

                                  II. DISCUSSION

      A COA is a jurisdictional prerequisite to our review of a petition for a writ

of habeas corpus. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). We will issue

a COA “only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). To make such a showing, an

applicant must demonstrate “that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations

informed of the time period for objecting and the consequences of failing to object, or
when (2) the interests of justice require review.” Morales-Fernandez v. I.N.S., 418 F.3d
1116, 1119 (10th Cir. 2005) (quotations omitted). Neither exception to the firm waiver
rule applies here. In any event, even excusing this procedural defect, McNeil is not
entitled to a COA.

                                           -3-
omitted).

      28 U.S.C. § 2254(a) provides:

      The Supreme Court, a Justice thereof, a circuit judge, or a district court
      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.) “The ‘in custody’ language of § 2254 is jurisdictional and

requires habeas petitioners to be ‘in custody’ under the conviction or sentence

under attack when they file the petition.” Broomes v. Ashcroft, 358 F.3d 1251,

1254 (10th Cir. 2004). The district court found McNeil did not meet the “in

custody” requirement. McNeil contends he satisfies the requirement because he

was fined $500. An outstanding fine does not satisfy § 2254’s “in custody”

requirement. See Erlandson v. Northglenn Mun. Ct., 528 F.3d 785, 788 (10th Cir.

2008) (“We agree with the district court that the payment of restitution or a fine,

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

custody requirement of the federal habeas statutes.”), (quotations omitted), cert.

denied, 129 S.Ct. 928 (2009). 4

      4
         For purposes of the “in custody” requirement, consecutive sentences are
considered in the aggregate. Garlotte v. Fordice, 515 U.S. 39, 40-41, 47 (1995); Peyton
v. Rowe, 391 U.S. 54, 64-65 (1968). A petitioner incarcerated under consecutive
sentences “remains ‘in custody’ [for purposes of § 2254] under all of his sentences until
all are served.” Garlotte, 515 U.S. at 41; see also Foster v. Booher, 296 F.3d 947, 949-50
(10th Cir. 2002). In this case, McNeil was in custody serving a 21-year sentence on his
manufacturing methamphetamine conviction at the time he filed his § 2254 petition.
However, that conviction ran concurrent to his resisting an officer conviction. Garlotte
has not been extended to cases involving concurrent sentences. See Wright v. United

                                           -4-
      We DENY McNeil’s request for a COA and DISMISS this nascent appeal.

We also DENY McNeil’s motion to proceed in forma pauperis on appeal. 5


                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




States, 116 F.3d 488, No. 95-35922, 1997 WL 306412, at *1 (9th Cir. June 2, 1997)
(unpublished) (cited for persuasive value pursuant to 10th Cir. R. App. P. 32.1(A).
      5
        See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of appeal
does not relieve a party from the responsibility to pay the appellate filing fee).

                                           -5-
