                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                               October 19, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                  Clerk of Court
                                 TENTH CIRCUIT




 CHARLES DERRICK KELLER,

               Petitioner - Appellant,                  No. 12-7006
          v.                                         (E.D. Oklahoma)
 STATE OF OKLAHOMA,                        (D.C. No. 6:11-CV-00209-JHP-KEW)

               Respondent - Appellee.



                            ORDER AND JUDGMENT *


Before MURPHY, EBEL, and HARTZ, 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 appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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. 32.1.
      Petitioner Charles Keller appeals from the district court’s order dismissing

the underlying 28 U.S.C. § 2254 proceeding for lack of subject matter

jurisdiction. Specifically, the court held that because Mr. Keller is not currently in

custody pursuant to a state judgment, he cannot satisfy the “in custody”

requirement of 28 U.S.C. § 2241(c)(3). We granted a certificate of appealability

on the issue whether, as Mr. Keller maintains, he continues to be subject to

Sequoyah County, Oklahoma conviction number CF-2001-89. Concluding he is

not subject to that conviction, and therefore not in custody under the statute, we

AFFIRM the district court’s order.

      Mr. Keller is currently serving a federal sentence arising from his

conviction on a firearm charge in the United States District Court for the Southern

District of Illinois. His sentence for that conviction was enhanced, however, in

light of three state-court convictions from Oklahoma, including CF-2001-89. In

his petition, Mr. Keller asserted issuance of a December 2, 2010 county court

order involving CF-2001-89, as well as other state court convictions, violated his

federal constitutional rights.

      After the petition was filed, the respondent submitted a motion to dismiss,

asserting Mr. Keller was not subject to a current state court judgment. The district

court granted that motion, noting in particular the in custody requirement and

concluding there was no jurisdiction to consider the claims. The court also

acknowledged Mr. Keller had pending at that time a § 2255 action seeking to

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challenge his sentence, including the enhancement, directly. See Keller v. United

States, 657 F.3d 675 (7th Cir. 2011).

      On appeal, Mr. Keller maintains the district court erred in concluding he

failed to satisfy the in custody requirement. He asserts he continues to be subject

to the sentence and judgment in CF-2001-89, and that the state court records on

file support that assessment. Mr. Keller argues his sentence did not begin to run

in that case, at least technically, until April of 2010 because it was set to run

consecutive to another state conviction which expired in March of that year.

      Upon a very careful review of the record materials, we agree with the

district court. The state court materials provided in the respondent’s supplemental

record support this conclusion. Specifically, on March 6, 2002, the district court

in Sequoyah County issued an order titled “Order Granting Modification of

Sentence and Judicial Review.” Via that order, the court modified the sentence in

number CF-2001-89 to “time served with the remaining NINE (9) years

suspended.” See Appellee’s Supp. Rec., Exhibit 3. That order negates petitioner’s

argument that he began serving that sentence in 2010.

      Likewise, petitioner’s Consolidated Record Card from the Oklahoma State

Department of Corrections notes the modifications to Mr. Keller’s sentences and

confirms number CF-2001-89 expired in March of 2010. See Appellee’s Supp.

Rec., Exhibit 1. These records, in combination, make clear Mr. Keller cannot

satisfy the in custody requirement. See 28 U.S.C. § 2241(c)(3); see also Maleng v.

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Cook, 490 U.S. 488, 492 (1989)(holding petitioner cannot satisfy in custody

requirement with fully expired sentence).

      Accordingly, we AFFIRM the decision of the district court. We also grant

petitioner’s motion to proceed in forma pauperis and his motion to supplement

the record on appeal.



                                              ENTERED FOR THE COURT


                                              Harris L Hartz
                                              Circuit Judge




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