                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   April 7, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



MARVIN BROWN,

             Petitioner - Appellant,
                                                        No. 08-2255
       v.                                            (D. New Mexico)
                                            (D.C. No. 1:07-CV-00860-JCH-DJS)
MIKE HEREDIA, Warden,

             Respondent - Appellee.


                                       ORDER


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Proceeding pro se, Marvin Brown seeks a certificate of appealability

(“COA”) so he can appeal the district court’s dismissal of the habeas petition he

filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). In his petition, filed on August 30, 2007, Brown

attacks the validity of a New Mexico sentence imposed on August 22, 1994, for a

parole violation. The matter was referred to a magistrate judge who ordered

Respondent to file an answer. Respondent filed both an answer and a motion to

dismiss Brown’s petition, arguing it was untimely. See 28 U.S.C. § 2244(d)

(setting forth a one-year statute of limitations for § 2254 applications); Hoggro v.
Boone, 150 F.3d 1223, 1225 (10th Cir. 1998) (holding prisoners whose state

convictions became final prior to the enactment of the Antiterrorism and Effective

Death Penalty Act have one year from April 24, 1996 to file a federal habeas

petition). In the alternative, Respondent argued Brown could not satisfy the “in

custody” requirement of § 2254(a) because his conviction and sentence was fully

expired at the time he filed his petition. 28 U.S.C. § 2254(a); Maleng v. Cook,

490 U.S. 488, 492 (1989) (stating a § 2254 habeas petitioner whose sentence has

expired is no longer “in custody” for that conviction, even if it was used to

enhance his current sentence). The district court adopted the magistrate’s

recommendation that Brown’s petition be dismissed as untimely.

      After reviewing the record, including the attachments to the answer

Respondent filed with the district court, we conclude we do not have jurisdiction

to consider Brown’s § 2254 application. Because the sentence he challenges has

expired, Brown is no longer “in custody pursuant to the judgment of a State

court.” 28 U.S.C. § 2254(a); Maleng, 490 U.S. at 492.

      Accordingly, we remand to the district court with instructions to vacate its

judgment and dismiss the matter for lack of jurisdiction.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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