                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                   UNITED STATES COURT OF APPEALSDecember 6, 2011
                                                                Elisabeth A. Shumaker
                                TENTH CIRCUIT                       Clerk of Court



 TRACY NEIBERGER,

              Petitioner-Appellant,
                                                         No. 11-5101
                                            (D.C. No. 4:11-CV-00033-GKF-TLW)
 v.
                                                         (N.D. Okla.)
 JAMES RUDEK, Warden,

              Respondent-Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Tracy Neiberger is a prisoner in the custody of the State of Oklahoma.

Proceeding pro se, 1 he seeks a Certificate of Appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C § 2254 petition for a writ of habeas corpus.


      *
          This Order is not binding precedent, except under the doctrines of law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 Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 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 matter. See Fed. R. App. P. 34(a)(2); 10th
Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
      1
             Because Mr. Neiberger is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van
Deelen v. Johnson, 497 F.3d 1151, 1153 n.1 (10th Cir. 2007).
For the reasons explained below, we deny his request for a COA, dismiss this

matter for lack of jurisdiction, and remand to the district court with instructions to

vacate its judgment.

                                   I. Background

      On December 13, 1984, Mr. Neiberger “was convicted on . . . [a] plea[] of

guilty to four charges of Robbery With a Firearm” in Tulsa County District Court.

R., Vol. 1, at 19 (Dist. Ct. Op. & Order, filed June 27, 2011). He was sentenced

to eighteen years’ imprisonment on each charge, “with the sentences to run

concurrently.” Id.

      Mr. Neiberger did not file a motion to withdraw his plea, nor did he perfect

a certiorari appeal to the Oklahoma Court of Criminal Appeals (“OCCA”). In

fact, he did not take any action challenging the validity of his convictions until

February 26, 2010. On that date, he filed a petition in state district court

collaterally attacking his convictions and “alleging several propositions of error

which he [claims] entitle him to have his judgments and sentences vacated.” Id.

at 14 (OCCA Order Affirm. Den. App. Post Conviction Relief, filed June 28,

2010). The state district court denied his claims and, on appeal, the OCCA

affirmed, finding his petition barred by the state-law doctrine of laches. See id. at

15 (“Petitioner is barred by laches from being granted the relief requested, and

has forfeited the right to assert he is entitled to relief.”). The OCCA found “no

plausible explanation” for Mr. Neiberger’s twenty-five-year delay in challenging

                                         -2-
his convictions and guilty plea. Id. at 15–16.

      Mr. Neiberger filed a federal habeas petition on December 23, 2010. He

challenged the validity of his 1984 convictions, “arguing that he was denied the

effective assistance of counsel, that he was deprived of due process and equal

protection . . . , and that the [state] district court imposed an unauthorized fine.”

Id. at 20. The district court found his petition barred by the one-year statute of

limitations in the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), 28 U.S.C. § 2244(d)(1).

      The district court concluded that Mr. Neiberger’s convictions became final

on December 23, 1984, ten days after the entry of the judgment and sentence in

his case because he did not seek to withdraw his plea or appeal his convictions. 2

See Rule 4.1, Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit.

22, ch. 18, app. (1981) (“To appeal from any conviction on a plea of guilty, the

defendant must have filed an application to withdraw the plea . . . within ten (10)

days from the date of the pronouncement of the judgment and sentence . . . .”). 3


      2
             Pertinently, under AEDPA, the one-year limitations period runs from
“the date on which the judgment became final by the conclusion of direct review
or the expiration of the time for seeking such review.” 28 U.S.C.
§ 2244(d)(1)(A).
      3
             The substance of the Oklahoma rule setting forth the procedures for
withdrawing a guilty plea in order to file an appeal is materially the same today as
it was under the rules that applied when Mr. Neiberger was convicted. Compare
Rule 4.1, Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22,
ch. 18, app. (1981), with Rule 4.2(A), Rules of the Oklahoma Court of Criminal
Appeals, Okla. Stat. tit. 22, ch. 18, app. (2010) (“[T]o appeal from any conviction

                                          -3-
However, the district court correctly noted that prisoners whose convictions

became final before April 24, 1996—AEDPA’s enactment date—were afforded a

one-year grace period within which to file for federal habeas relief. See Fisher v.

Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001) (“Where a conviction became final

before AEDPA took effect, as is the case with [the petitioner], the one year

limitation period for a federal habeas petition starts on AEDPA’s effective date,

April 24, 1996.”). Thus, because Mr. Neiberger’s convictions became final

before April 24, 1996, the district court found that he had until April 24, 1997,

absent any applicable tolling, to file his petition.

      The district court further concluded, however, that Mr. Neiberger

nonetheless filed his petition long after the one-year limitations period expired

and was not entitled to any tolling exceptions. Specifically, although 28 U.S.C.

§ 2244(d)(2) provides that the one-year limitations period is tolled during pursuit

of state collateral proceedings, Mr. Neiberger’s relevant state post-conviction

proceedings were initiated well after his one-year term expired on April 24, 1997.

The district court also concluded that he was not entitled to equitable tolling

because there was no evidence that he diligently pursued his rights or that

“extraordinary circumstances” stood in the way of his filing of a petition for


on a plea of guilty or nolo contendere, the defendant must have filed in the trial
court clerk’s office an application to withdraw the plea within ten (10) days from
the date of the pronouncement of the Judgment and Sentence[.]”). Mr. Neiberger
does not contest that his convictions were “final” for purposes of Oklahoma law
on December 23, 1984.

                                           -4-
relief. See R., Vol. 1, at 23 (quoting Yang v. Archuleta, 525 F.3d 925, 928 (10th

Cir. 2008)) (internal quotation marks omitted). It therefore dismissed his petition

with prejudice as time-barred and denied a COA. He now seeks a COA from us

to challenge the district court’s determination.

                                   II. Discussion

      A COA is a jurisdictional prerequisite to our review of the merits of a

habeas appeal. 28 U.S.C. § 2253(c)(1)(A); accord Clark v. Oklahoma, 468 F.3d

711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537 U.S. 322, 336

(2003)). We may 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

satisfy this standard, the applicant must show “that reasonable jurists could debate

whether . . . the petition should have been resolved in a different manner or that

the issues presented were adequate to deserve encouragement to proceed further.”

Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009) (quoting Slack v.

McDaniel, 529 U.S. 473, 484 (2000)) (internal quotation marks omitted).

      Where, as here, the district court denies an application on a procedural

ground, ordinarily the applicant must show both “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.” Harris v. Dinwiddie, 642 F.3d

902, 906 (10th Cir. 2011) (quoting Slack, 529 U.S. at 484) (internal quotation


                                         -5-
marks omitted).

      “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.” Slack, 529 U.S. at 484; accord Coppage v. McKune,

534 F.3d 1279, 1281 (10th Cir. 2008). “[W]e may deny a COA if there is a plain

procedural bar to habeas relief, even though the district court did not rely on that

bar.” Davis v. Roberts, 425 F.3d 830, 834 (10th Cir. 2005); see also Miller v.

Glanz, 331 F. App’x 608, 610 (10th Cir. 2009) (“While this proceeding is

currently before us on an application for COA to review the district court’s

disposition of the [Interstate Agreement on Detainers Act] claim on the merits,

that does not impede our ability to recognize other impediments to habeas relief

in the case.”). That is precisely the situation that we face here: we have identified

a procedural bar to COA relief arising from the district court’s lack of subject

matter jurisdiction to adjudicate Mr. Neiberger’s habeas petition—specifically,

Mr. Neiberger failed to demonstrate that he was “in custody”—and we feel

obliged to rest our COA decision on that jurisdictional procedural bar. See Davis,

425 F.3d at 833–35 (declining to rest COA determination on district court’s

procedural decision that prisoner’s 28 U.S.C. § 2241 petition was time-barred, but

rather concluding that the prisoner did not satisfy the “in custody” requirement).

      The Supreme Court has stated that “[a]n appellate federal court must satisfy


                                          -6-
itself not only of its own jurisdiction, but also of that of the lower courts in a

cause under review.” Mitchell v. Maurer, 293 U.S. 237, 244 (1934); accord

Arizonans for Official English v. Arizona, 520 U.S. 43, 73 (1997); see also United

States v. Corrick, 298 U.S. 435, 440 (1936) (noting that when a district court

lacked subject matter jurisdiction, “we have jurisdiction on appeal, not of the

merits, but merely for the purpose of correcting the error of the lower court in

entertaining the suit”); United States v. Siviglia, 686 F.2d 832, 834–35 (10th Cir.

1981) (“Notwithstanding the fact that neither party has raised the issue of this

court’s jurisdiction to hear this consolidated appeal, jurisdictional questions are of

primary consideration and can be raised at any time by courts on their own

motion.”). “Without jurisdiction the court cannot proceed at all in any cause.

Jurisdiction is power to declare the law, and when it ceases to exist, the only

function remaining to the court is that of announcing the fact and dismissing the

cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998) (quoting

Ex parte McCardle, 7 Wall. 506, 514 (1868)) (internal quotation marks omitted);

accord United States v. Tony, 637 F.3d 1153, 1157 (10th Cir. 2011).

      Thus, at the outset, we feel obliged in our COA inquiry to address a key

jurisdictional issue in habeas actions—the “in custody” requirement. In

particular, federal district courts lack subject matter jurisdiction to consider a

petition under § 2254 unless the petitioner is “‘in custody’ under the conviction or

sentence under attack at the time his petition is filed.” Maleng v. Cook, 490 U.S.


                                           -7-
488, 490–91 (1989) (per curiam); Anderson-Bey v. Zavaras, 641 F.3d 445, 453

(10th Cir. 2011) (“To obtain relief under § 2254, the applicant must be ‘in

custody’ under the challenged judgment.”); McCormick v. Kline, 572 F.3d 841,

848 (10th Cir. 2009) (“Section 2254’s in-custody requirement is jurisdictional.”).

      Because we conclude that Mr. Neiberger has failed to demonstrate that this

jurisdictional requirement is satisfied, we must conclude that reasonable jurists

could not debate the district court’s decision to dismiss the petition on procedural

grounds and, accordingly, we deny Mr. Neiberger a COA and dismiss this matter.

See Davis, 425 F.3d at 834 (“To the extent that Mr. Davis raises a claim

challenging the execution of his 1991 sentence, the district court lacked

jurisdiction to hear the claim because he was no longer in custody under that

sentence when he filed for relief in that court. Therefore, dismissal of Mr. Davis’s

§ 2241 claim was clearly correct and we deny a COA on that claim.”); see also

McCormick, 572 F.3d at 853 (“Because we lack jurisdiction over McCormick’s

[habeas] petition [because he was not ‘in custody’], his application for COA on

the additional issues is DENIED as moot.”).

      And, because the procedural bar that we have identified is jurisdictional,

we remand to the district court to vacate its judgment, which was entered with

prejudice, and to dismiss Mr. Neiberger’s petition for lack of subject matter

jurisdiction without prejudice. See Brown v. Warden, Springfield Med. Ctr. for

Fed. Prisoners, 315 F.3d 1268, 1270 (10th Cir. 2003) (“Because the district court


                                         -8-
lacked jurisdiction to entertain Brown’s [habeas] petition [because the ‘in

custody’ requirement was not satisfied], the application for a COA is DENIED

and the matter is DISMISSED.”); Miller v. Glanz, 331 F. App’x 608, 611 (10th

Cir. 2009) (holding that when lack of subject matter jurisdiction (i.e., mootness)

is noticed during COA inquiry, the appropriate remedy involves denying the COA

and dismissing the appellate matter, vacating the district court’s judgment, and

remanding with instructions to dismiss the underlying case without prejudice); 4 cf.

Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1133 (10th

Cir. 2010) (dismissing the appeal and remanding to the district court “with

directions to VACATE” its judgment on the ground that the claims that the

district court had adjudicated were moot). Compare Brereton v. Bountiful City

Corp., 434 F.3d 1213, 1216 (10th Cir. 2006) (“A longstanding line of cases from



      4
             The Miller panel helpfully discussed its rationale for why this is the
appropriate course, not only in the customary context where the court initially has
appellate jurisdiction over the appeal, but also when it has jurisdiction over a
pending COA application:

             This distinction between cases mooted when appeal is pending
             and cases mooted when COA is pending seems a distinction
             without a difference: in both cases the court lacks appellate
             jurisdiction when it dismisses the appeal (and, under the usual
             procedure, vacates the district court’s judgment and remands with
             directions to dismiss the case). If the absence of jurisdiction does
             not deprive the appellate court of the power to vacate the district
             court’s judgment and direct dismissal in the former, it should not
             in the latter.

Miller, 331 F. App’x at 611.

                                          -9-
this circuit holds that where the district court dismisses an action for lack of

jurisdiction, as it did here, the dismissal must be without prejudice.”), with 9

Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2369,

at 605–08 (3d ed. 2008) (“[T]he dismissal, due to the operation of the applicable

statute of limitations, has the effect of a dismissal with prejudice.”)

      Specifically, having carefully considered Mr. Neiberger’s filings, and the

record as a whole, we conclude that Mr. Neiberger has failed to demonstrate that

the “in custody” jurisdictional requirement is satisfied. See United States v.

Bustillos, 31 F.3d 931, 933 (10th Cir. 1994) (stating that “[t]he party seeking to

invoke the jurisdiction of a federal court must demonstrate that the case is within

the court’s jurisdiction” and, thus, that such party must demonstrate that he “is in

custody at the time of initiating [his] petition”); see also Merida Delgado v.

Gonzales, 428 F.3d 916, 919 (10th Cir. 2005) (noting that “the party invoking

federal jurisdiction bears the burden of proof” (quoting Marcus v. Kan. Dep’t of

Revenue, 170 F.3d 1305, 1309 (10th Cir. 1999)) (internal quotation marks

omitted)).

      Mr. Neiberger’s habeas petition quite plainly challenges his 1984

convictions. See R., Vol. 1, at 4 (Pet. for Writ of Habeas Corpus, filed Dec. 23,

2010) (indicating that November 1984 is the date of “the judgment of conviction

under attack”). However, employing simple arithmetic, the four eighteen-year

concurrent sentences that were imposed upon judgment in 1984 expired by their


                                         -10-
terms in 2002. See Maleng, 490 U.S. at 489 (employing similar analysis in

assessing satisfaction of “in custody” requirement; stating that “[i]n 1958,

respondent was convicted of robbery in Washington state court and sentenced to

20 years of imprisonment; this sentence expired by its terms in 1978”). Mr.

Neiberger has not offered us any explanation as to how the “in custody”

requirement is nonetheless satisfied.

      To be sure, in very limited circumstances, the “in custody” requirement

may be satisfied where a petitioner challenges a “conviction [that] was used to

enhance the sentence he is now serving.” Anderson-Bey, 641 F.3d at 453.

However, in those circumstances, a petitioner does not directly challenge the prior

enhancing conviction whose sentence he has already served (i.e., as to which he is

no longer in custody). See Maleng, 490 U.S. at 491 (“In this case, the Court of

Appeals held that a habeas petitioner may be ‘in custody’ under a conviction

whose sentence has fully expired at the time his petition is filed, simply because

that conviction has been used to enhance the length of a current or future sentence

imposed for a subsequent conviction. We think that this interpretation stretches

the language ‘in custody’ too far.”); see also Garlotte v. Fordice, 515 U.S. 39, 45

(1995) (“We held [in Maleng] that the potential use of a conviction to enhance a

sentence for subsequent offenses did not suffice to render a person ‘in custody’

within the meaning of the habeas statute.”). Instead, “a [petitioner] challenges a

current sentence on the ground that it was enhanced based on an allegedly


                                        -11-
unconstitutional prior conviction for which the petitioner is no longer in

custody.” 5 Lackawanna Cnty. Dist. Att’y v. Coss, 532 U.S. 394, 396 (2001); see

also 1 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and

Procedure § 8.2[c], at 437–38 (6th ed. 2011) (“In certain situations, however, a

prisoner can challenge the legality of such a former conviction by filing a petition

challenging the legality of the current sentence and asserting that the current

sentence has been or may be unlawfully enhanced or lengthened by the allegedly

illegal prior conviction. By framing the claim as a challenge to the current

sentence as enhanced or lengthened by the former conviction, the prisoner

satisfies the ‘in custody’ requirement.”).

      Mr. Neiberger’s averments do not come close to satisfying the “in custody”

requirement under these legal principles. Significantly, Mr. Neiberger has not

framed his habeas petition as an attack on his current sentence, on the ground that

it was enhanced by his 1984 convictions, but rather as a direct attack on the 1984

convictions. Construing his pro se filings liberally, this failing would not

necessarily create an insurmountable obstacle to relief. See Maleng, 490 U.S. at



      5
             This is what the defendant sought unsuccessfully to do in Anderson-
Bey, as he “d[id] not dispute that his [prior enhancing] criminal-trespass
conviction [of 1983] [wa]s no longer open to direct or collateral attack in its own
right.” Anderson-Bey, 641 F.3d at 453 (emphasis added); see, e.g., Aplt. Opening
Br. at 8, Anderson-Bey v. Zavaras, No. 10-1159 (10th Cir. Oct. 6, 2010)
(characterizing the issue as “whether the enhanced sentence . . . violated the Due
Process Clause” because the enhancing conviction was constitutionally defective
(emphasis added)).

                                        -12-
493–94 (“Since we think respondent’s habeas petition, construed with the

deference to which pro se litigants are entitled, can be read as asserting a

challenge to the 1978 sentences, as enhanced by the allegedly invalid prior

conviction, we affirm the Court of Appeals’ finding that respondent has satisfied

the ‘in custody’ requirement for federal habeas jurisdiction.” (citations omitted));

accord McCormick, 572 F.3d at 851. But Mr. Neiberger has not even identified

the criminal sentence that forms the basis for his current incarceration, much less

made a particularized argument that this sentence was enhanced by his 1984

convictions. Cf. Maleng, 490 U.S. at 489–90 (“Respondent’s petition listed the

1958 Washington conviction as the ‘conviction under attack,’ alleging that it was

invalid because respondent had not been given a competency hearing . . . . [but]

also alleged that the 1958 conviction had been used illegally to enhance his 1978

state sentences, which he had not yet begun to serve.”); McCormick, 572 F.3d at

851–52 (“[W]e must be able to construe the petition—which lists McCormick’s

2001 convictions as the judgment of conviction under attack—as a challenge to

his 2004 sentence as enhanced by the 2001 convictions.”).

      Specifically, without identifying his current sentence, Mr. Neiberger

alleges in his petition (albeit erroneously) only that “anytime a prior conviction is

used to enhance[,] it is always open for collateral attack.” R., Vol. 1, at 5

(emphasis omitted). And then, before us, he makes a fleeting suggestion that

“Judgments and Sentences”—presumably those obtained in 1984—were “used to


                                         -13-
enhance punishment in this case being appealed.” Aplt. Opening Br. at 3. But he

does not identify the conviction in this “case” to which he refers, and does not

indicate whether the sentence relating to that conviction is currently unexpired, or

how the 1984 convictions were used as enhancements. Thus, even though it

would be permissible for us to liberally construe Mr. Neiberger’s pro se habeas

petition as attacking an enhanced sentence for which he currently is “in

custody”—instead of directly attacking his 1984 convictions—Mr. Neiberger has

not given us any basis for determining that his current sentence is a sentence that

has been enhanced by the 1984 convictions. Cf. McCormick, 572 F.3d at 852

(concluding that petitioner’s single explicit reference in his amended petition to

the use of his 2001 conviction to enhance his 2004 conviction and to his intention

to attack that enhancement, although amounting “at best” to “perfunctory”

references, was sufficient to assert a challenge to the 2004 conviction for

purposes of the “in custody” requirement). To reach a conclusion that Mr.

Neiberger’s current sentence (whatever it is) was enhanced by his 1984

convictions, we would need to engage in speculation and conjecture, and federal

courts are disinclined to ground subject matter jurisdiction on such processes. Cf.

Nichols v. Utah, 315 F. App’x 740, 743 n.3 (10th Cir. 2009) (“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


                                        -14-
habeas purposes when he filed his habeas petitions.”).

      Mr. Neiberger’s petition was subject to dismissal on jurisdictional grounds;

he has failed to demonstrate that he was “in custody” at the time he filed the

petition. Therefore, “dismissal of [Mr. Neiberger’s] § [2254] claim was clearly

correct and we deny a COA on that claim.” Davis, 425 F.3d at 834. Reasonable

jurists could not debate the resolution of Mr. Neiberger’s petition based upon a

procedural bar.

                                  III. Conclusion

      We have concluded that the district court lacked subject matter jurisdiction

to resolve Mr. Neiberger’s habeas petition because Mr. Neiberger has not

demonstrated that he was “in custody” when he filed it. Consequently, for the

reasons noted above, we DENY Mr. Neiberger’s request for a COA and

DISMISS this matter. We remand the case to the district court with instructions

to conform its judgment to our holding by VACATING the judgment and

dismissing Mr. Neiberger’s petition without prejudice for lack of subject matter

jurisdiction.



                                       Entered for the Court

                                       JEROME A. HOLMES
                                       Circuit Judge




                                        -15-
