                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALS May 14, 2013
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,                      No. 13-6028
       v.                                             (W.D. Oklahoma)
 JOSEPH EDWARD McCONNEL,                      (D.C. Nos. 5:12-CV-00127-M and
                                                    5:02-CR-00009-M-1)
              Defendant - Appellant.


                          ORDER OF DISMISSAL


Before BRISCOE, Chief Circuit Judge, and ANDERSON and TYMKOVICH,
Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this matter. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Defendant and appellant Joseph McConnel, proceeding pro se, seeks a

certificate of appealability (“COA”) to enable him to appeal the dismissal of his

28 U.S.C. § 2255 motion. For the following reasons, we dismiss this matter.

      As the district court below noted, Mr. McConnel was convicted by a jury in

the United States District Court for the Western District of Oklahoma on June 10,

2002, on charges relating to the illegal sale or transfer of weapons.
Mr. McConnel was sentenced to seventy-one months’ imprisonment and three

years of supervised release. He unsuccessfully challenged his conviction and/or

sentence on direct appeal, through a petition for a writ of certiorari by the United

States Supreme Court and through a petition for a writ of habeas corpus under 28

U.S.C. § 2255. Mr. McConnel then appealed the denial of his § 2255 habeas

petition, and our court (on appeal) remanded the matter to the district court for

additional factual findings on Mr. McConnel’s claim that his appellate counsel

was ineffective.

      While that matter was still pending before the Oklahoma federal district

court, Mr. McConnel filed a petition pursuant to 28 U.S.C. § 2241 in the federal

district court in Nevada. In that petition, he argued that he was “actually,

factually and legally innocent of the unconstitutional sentence which he is

currently serving.” Order at 2. The Nevada district court concluded that

Mr. McConnel had “not demonstrated that the § 2255 motion still pending before

the courts in Oklahoma is ‘inadequate or ineffective to test the legality of his

detention.’” Id. at 4-5 (quoting 28 U.S.C. § 2255(e)). The court therefore

concluded that Mr. McConnel was not entitled to pursue a § 2241 petition.

      The court determined, however, that “rather than dismiss the petition

outright, in the interests of justice, the Court . . . construe[d] the petition as a

motion to amend the pending § 2255 motion and . . . transfer[red] the matter to




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the United States District Court for the Western District of Oklahoma to be

considered by that court.” Order at 5.

      Mr. McConnel’s action was accordingly transferred on February 1, 2012,

from the federal district court in Nevada to the federal district court in western

Oklahoma, where it was treated as an amendment to Mr. McConnel’s original

§ 2255 motion. The court observed that Mr. McConnel’s supervised release had

expired on January 27, 2012. The court then determined as follows: “Where

judicial relief will not remedy the appellant’s injury, ‘the appellant can no longer

satisfy the Article III case or controversy jurisdictional requirement and the

appeal is moot.’” Order at 1-2 (quoting United States v. Meyers, 200 F.3d 715,

718 (10th Cir. 2000)). “Additionally , the United States district court has

jurisdiction to entertain [Mr. McConnel]’s claim only while [he is] in federal

custody. With [Mr. McConnel] having served his term of incarceration and the

expiration of his supervised release, the Court finds that [Mr. McConnel]’s

amendment to his original § 2255 claim is MOOT and this matter is therefore

DISMISSED.” Id. at 2 (citing 28 U.S.C. § 2255).

      As indicated, Mr. McConnel seeks a COA to appeal that determination.

Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make a

“substantial showing of the denial of a constitutional right.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). We need not reach the question of whether

Mr. McConnel has made such a substantial showing, because we note, as did the

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district court, that he is no longer a prisoner. We conclude, as did the court

below, that this matter is moot and is properly dismissed. Mr. McConnel’s

request to proceed on appeal in forma pauperis is denied.

      For the foregoing reasons, this matter is DISMISSED.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




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