                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              September 2, 2005
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 LISA JANE GRAHAM,

                Petitioner - Appellant,                        No. 05-3158
           v.                                                  (D. Kansas)
 RICHARD KOERNER; PHILL KLINE,                        (D.C. No. 03-CV-3075-SAC)

                Respondents - Appellees.


                               ORDER AND JUDGMENT*


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


       Lisa Jane Graham was sentenced by the State of Kansas to terms of imprisonment,

probation, and supervised release in two separate cases. On February 10, 2003, she filed

in the United States District Court for the District of Kansas an application for habeas

relief under 28 U.S.C. § 2254(a) with respect to her first conviction. The district court

dismissed her application on the ground that she was not in custody on the first conviction

at the time she filed the application. She contends, however, that she had not yet fully

served the sentence from her first conviction and therefore was in custody for purposes of


       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
§ 2254. We grant her application for a certificate of appealability (COA) on two of her

constitutional claims, see 28 U.S.C. § 2253 (requiring a COA), after determining that she

was in custody for the purposes of federal habeas relief when she filed her application in

district court. We remand to the district court for further proceedings.

       The “in custody” requirement in § 2241(c)(3), see also 28 U.S.C. § 2254(a) (relief

can be granted only if applicant is “in custody . . . in violation of the Constitution or laws

or treaties of the United States”), requires “that the habeas petitioner be ‘in custody’

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

Cook, 490 U.S. 488, 490-91 (1989) (per curiam).

       Ms. Graham’s first sentence of six months’ imprisonment, 24 months’ probation,

and 12 months’ supervised release1 was imposed on March 20, 2000. Ms. Graham was

apparently confined from December 30, 1999, until April 3, 2000, when she was

presumably released, beginning her period of probation. From the record it appears that

she was taken back into custody on October 5, 2000, on the charge that led to her second

conviction and sentence. She has remained in custody since that date.

       The second sentence of 120 months’ imprisonment was imposed March 6, 2001,

and ran consecutively to the first. Ms. Graham’s probation on the first sentence was




       The court initially imposed a 24-month period of supervised release, but the
       1

period was reduced by a retroactive statute shortly after imposition. See Kan. Stat. Ann.
§ 22-3717(d)(1)(C), (s), and (t).

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revoked March 9, 2001, as a consequence of her conviction and sentencing in the second

case.

        On February 10, 2003, Ms. Graham filed her § 2254 application for relief in the

United States District Court for the District of Kansas. She alleged the following

constitutional errors: (1) that the prosecutor’s statements to the jury during closing

arguments denied her a fair trial; (2) that the state court failed to instruct the jury on a

lesser included offense; and (3) that her trial counsel was ineffective for failing to

impeach the state witnesses with evidence contrary to their testimony.

        The district court noted that her application for post-conviction relief under Kan.

Stat. Ann. § 60-1507 had been dismissed by a Kansas court on the ground that she was no

longer in custody on her first conviction. The district court therefore ordered her to show

cause why her § 2254 application should not be dismissed for want of jurisdiction.

Ms. Graham responded that she was “still in custody [on her first sentence] of the Kansas

Department of Corrections 24 months after her release.” R. Doc. 8 at 1. She alleged that

because the 24-month period of supervised release required by the first sentence had not

lapsed before she was confined on the second sentence, she would be required to serve it

once released from her second term of confinement.

        On March 25, 2005, the district court found that Ms. Graham was not in custody as

required by § 2254(a) and dismissed her application for relief. It also noted that even if




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she was in custody, she had procedurally defaulted her claims in Kansas state court, thus

barring federal review. The district court also denied her application for a COA.

       In her application for a COA to this court, Ms. Graham argues that even though

she had completed the six months’ imprisonment, she was nonetheless in custody on her

first sentence at the time she filed her § 2254 application because she had not fully

completed her first sentence. She also requests that we “review her issues of errors of the

trial court” alleged in her habeas application. App. for COA at 3.

       “A certificate of appealability may issue . . . only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c). “When

the district court denies a habeas petition on procedural grounds without reaching the

prisoner’s underlying constitutional claim, 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.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present and the

district court is correct to invoke it to dispose of the case, a reasonable jurist could not

conclude either that the district court erred in dismissing the petition or that the petitioner

should be allowed to proceed further.” Id. We recognize that in determining whether to

issue a COA, a “full consideration of the factual or legal bases adduced in support of the

claims” is not required. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Instead, the


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decision must be based on “an overview of the claims in the habeas petition and a general

assessment of the merits.” Id.

       The district court dismissed Ms. Graham’s § 2254 application for lack of

jurisdiction. That decision was erroneous. It is undisputed that when Ms. Graham filed

her application, she was in custody, serving the second of two consecutive sentences.

“[A] prisoner serving consecutive sentences is ‘in custody’ under any one of them for the

purposes of the habeas statute.” Garlotte v. Fordice, 515 U.S. 39, 45-46 (1995) (internal

quotation marks omitted). In Foster v. Booher, 296 F.3d 947, 949-50 (10th Cir. 2002),

we applied that rule even though the consecutive sentences were imposed by different

courts for different offenses at different times. The decisive question is whether the

prisoner “is currently serving a ‘continuous stream’ of . . . consecutive sentences.” Id. at

949.

       Before we can remand this case to the district court, however, we must determine

whether Ms. Graham has satisfied the requirements for issuance of a COA. In particular,

are her constitutional claims debatable, and are the claims procedurally barred by her

failure to pursue them fully in state court? We must be mindful of the Supreme Court’s

admonition that while “[a] prisoner seeking a COA must prove something more than the

absence of frivolity or the existence of mere good faith on his or her part,” it is equally

unnecessary for a prisoner to show “that some jurists would grant the petition for habeas

corpus. Indeed, a claim can be debatable even though every jurist of reason might agree,


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after the COA has been granted and the case has received full consideration, that

petitioner will not prevail.” Miller-El, 537 U.S. at 338 (internal citations and quotation

marks omitted).

       Of Ms. Graham’s three claims, one clearly has no merit. “Our precedents establish

a rule of ‘automatic non-reviewability’ for claims based on a state court’s failure, in a

non-capital case, to give a lesser included offense instruction.” Dockins v. Hines, 374

F.3d 935, 938 (10th Cir. 2004). But, at this stage in the proceedings, jurists of reason

would find it debatable whether Ms. Graham’s other claims—that the prosecutor’s

statements to the jury during closing arguments denied her a fair trial and that her trial

counsel was ineffective for failing to impeach the state witnesses with evidence contrary

to their testimony—are valid. Because the district court did not address them and neither

party briefed the merits, the record on appeal is simply too spare for us to conclude that

these claims lack merit.

       As for procedural bar, Ms. Graham’s claims may well have been procedurally

defaulted in Kansas state court, thus precluding review in federal proceedings. Coleman

v. Thompson, 501 U.S. 722, 729-30 (1991) (federal courts will not address claims

procedurally defaulted in state court). But on the record before us we cannot say that her

claims were not adequately presented to the state courts on direct appeal, that the ground

for state procedural bar was adequate, id. at 730-32, or that she cannot show cause for any

procedural lapse, id. at 749-51 (procedural bar may be overcome by showing cause and


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prejudice). The district court addressed procedural bar only in a brief footnote. Hence,

we cannot deny a COA because of a clear procedural bar.

       We GRANT a COA on two of Ms. Graham’s constitutional claims and REVERSE

the district court’s dismissal of the § 2254 application for lack of jurisdiction. The case is

REMANDED to the district court for further proceedings.

                                           ENTERED FOR THE COURT


                                           Harris L Hartz
                                           Circuit Judge




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