                                                                                      FILED
                                                                          United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                             Tenth Circuit

                             FOR THE TENTH CIRCUIT                            November 13, 2015
                         _________________________________
                                                                              Elisabeth A. Shumaker
                                                                                  Clerk of Court
CROSBY LINCOLN POWELL,

      Petitioner - Appellant,

v.                                                            No. 15-1211
                                                     (D.C. No. 1:15-CV-00250-LTB)
ARAPAHOE COUNTY DISTRICT                                        (D. Colo.)
COURT; THE ATTORNEY GENERAL
OF THE STATE OF COLORADO,

      Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before GORSUCH, McKAY, and BACHARACH, Circuit Judges.
                  _________________________________

       Petitioner Crosby Powell, proceeding pro se, requests a certificate of appealability

to appeal the district court’s denial of his habeas corpus petition. For the reasons

explained below, his request is denied.

       Six years ago, in a Colorado state court, Mr. Powell pled guilty to one count of

theft. He was sentenced to six years’ probation, with a suspended sentence of twelve

years’ imprisonment. He did not appeal. He was later convicted of federal crimes

committed during his probation and has been in federal custody since 2012.



*
  This order is not binding precedent, except under the doctrines of law of the case, res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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       Two years ago, because of Mr. Powell’s federal conviction, the state moved to

revoke his probation and reinstate the suspended sentence of imprisonment. In response,

Mr. Powell filed this petition under 28 U.S.C. § 2254. He asserts three grounds for relief,

two of which challenge his original Colorado conviction and one of which challenges the

probation revocation proceedings, which were still ongoing when he filed his petition.

       Mr. Powell’s first two claims fail because they are asserted too late. The law that

allows prisoners to challenge state court convictions through habeas corpus gives them

only one year to file their petitions. 28 U.S.C. § 2244(d)(1). Mr. Powell’s year started in

March 2009, when the deadline passed for him to file an appeal. His one-year period

could have been extended if he had been actively challenging his conviction in state

court, or if unusual circumstances had prevented him from filing a petition. But nothing

prevented him from filing a petition during his one-year window,1 and he never

challenged his conviction in state court until long after his one-year window had closed.

Thus, when he finally filed his federal petition in January 2015, it was nearly five years

late. Reasonable jurists therefore would not debate the district court’s dismissal of these

untimely claims.

       Mr. Powell’s third claim is now five years late. Instead of alleging errors in his

original conviction, it alleges that “Arapahoe County Court refuses to bring the Petitioner

before the court in disposing of the probation violations charges.” (R. at 32.) Further,

instead of requesting that his original sentence be vacated or modified, it asks that the

1
 Although he was not actually imprisoned, he was on probation with a suspended
sentence, which satisfies the requirement that habeas petitioners must be “in custody.”
Mays v. Dinwiddie, 580 F.3d 1136, 1139 (10th Cir. 2009).
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Arapahoe County Court be ordered “to grant the Petitioner a forthwith hearing on the

probation charges” or, alternatively, to “dismiss[] the charges with prejudice contained in

the probation complaint and warrant.” (R. at 35.)

       Thus, rather than being too late, the third claim in Mr. Powell’s § 2254 petition has

been brought too early. Section 2254 permits petitioners “in custody pursuant to the

judgment of a State court” to bring challenges to their conviction and sentence; it does

not permit challenges to state court proceedings where a conviction or sentence has yet to

be entered. See Walck v. Edmonson, 472 F.3d 1227, 1234–35 (10th Cir. 2007). Thus,

reasonable jurists would not debate the district court’s holding that this claim is not

cognizable under § 2254.

       The correct vehicle for challenging the ongoing probation proceedings would be a

habeas petition under § 2241. See Braden v. 30th Judicial Circuit Court, 410 U.S. 484,

485–86 (1973) (considering, under 28 U.S.C. § 2241, a habeas petition filed by a prisoner

of one state to challenge a detainer filed against him by another state). Although the

district court could conceivably have recharacterized Mr. Powell’s third claim as a § 2241

petition, doing so might have made it difficult for Mr. Powell to file any future § 2241

petitions challenging the ongoing probation proceedings. See Simon v. United States, 359

F.3d 139, 143–45 (2d Cir. 2004) (“Under the present circumstances . . . a habeas

petitioner is far from assured that a sua sponte conversion [of a 2254 petition to a 2241

petition] will not have serious ill effects on future efforts to pursue § 2241 relief . . . .”);

see also McClesky v. Zant, 499 U.S. 467, 483–84 (1991) (recognizing that § 2241 habeas

claims that could have been raised in an earlier petition might be barred as abuses of the

                                               -3-
writ). Further, looking at the substance of the claim, we are persuaded that

recharacterization in this case would have been futile.

       We see three conceivable legal bases for Mr. Powell’s third claim, none of which

would entitle him to relief if his claim were recharacterized as a § 2241 petition. First,

some of Mr. Powell’s language seems to ask us to order dismissal of the probation

proceedings simply because his original six-year probation period has ended. This

request cannot be granted because it does not allege a violation of federal law as §2241

requires. See 28 U.S.C. § 2241(c)(3) (permitting habeas relief only for prisoners “in

custody in violation of the Constitution or laws or treaties of the United States”). Second,

other language suggests that Mr. Powell seeks to revive an argument he originally raised

in state court, namely that the Interstate Agreement on Detainers requires the probation

proceedings to be disposed of within a certain period of time. This argument fails

because the Interstate Agreement on Detainers does not apply to probation revocation

proceedings of the sort that Mr. Powell challenges. Carchman v. Nash, 473 U.S. 716, 726

(1985).

       Third, Mr. Powell can be understood as the district court understood him, namely

as alleging that the drawn-out probation proceedings violate his federal constitutional

right to due process. However, while the Supreme Court has recognized a due process

right for probation revocation proceedings to be resolved within a reasonable time,

Morrisey v. Brewer, 408 U.S. 471, 488 (1972), this right does not attach until the

individual has been taken into custody pursuant to a probation revocation warrant,

McDonald v. N.M. Parole Bd., 955 F.2d 631, 633–34 (10th Cir. 1991). In this case, the

                                            -4-
record indicates—and Mr. Powell agrees—he has not been taken into state custody on the

probation revocation warrant. His right to a reasonably prompt disposition of the

probation proceedings has therefore not yet attached, and converting his § 2254 petition

into a § 2241 petition would have accomplished nothing except perhaps to prevent him

from filing a later § 2241 petition.

       For the foregoing reasons, reasonable jurists would not debate the district court’s

dismissal of Mr. Powell’s § 2254 habeas petition. We therefore DENY Mr. Powell’s

request for a certificate of appealability and DISMISS the appeal. We GRANT Mr.

Powell’s motion to proceed in forma pauperis on appeal.


                                              Entered for the Court


                                              Monroe G. McKay
                                              Circuit Judge




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