                                                                                 FILED
                                                                    United States Court of Appeals
                                                                            Tenth Circuit

                                                                          December 5, 2007
                      UNITED STATES COURT OF APPEALS
                                                                        Elisabeth A. Shumaker
                                TENTH CIRCUIT                               Clerk of Court
                       _____________________________________

 GEORGE ESPARZA,

               Petitioner-appellant,                           No. 07-4152
        v.                                                      (D. Utah)
 STATE OF UTAH,                                          (D.C. No. 2:05-CV-600)

               Respondent-appellee.


                                         ORDER
                       _

Before HENRY, TYMKOVICH, and HOLMES, Circuit Judges.



       George Esparza brings a pro se appeal, challenging the district court’s dismissal of

his Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Mr. Esparza failed to appear for

a January 20, 2004 bench trial, which resulted in the issuance of a bench warrant. The

trial was reset for March 30, 2004, and Mr. Esparza again failed to appear. Mr. Esparza

was found guilty in absentia of violating the City of West Valley Municipal Code for

[domestic] battery. He has not been sentenced.

       Mr. Esparza filed a § 2254 habeas petition. The district court dismissed the

petition for lack of jurisdiction because Mr. Esparza is not “in custody” as required by §

2254, or in the alternative, for failure to exhaust. On appeal, Mr. Esparza argues that (1)

the bench warrant is illegal under the Eighth Amendment and the Utah Constitution and
should be recalled; (2) the domestic battery charge is unconstitutional because “spitting”

is not an element of the offense; and (3) he is “in custody.”

       We construe Mr. Esparza’s brief as a request for a certificate of appealability

(“COA”), deny the application for a COA, and dismiss the matter.



                                     BACKGROUND

       The City of West Valley City, Utah charged Mr. Esparza with one count of

battery, a class B misdemeanor, in violation of West Valley City Municipal Code 21-6-

106, which provides:

       (1) A person commits battery if he, intentionally or knowingly, without legal
       justification and by any means:
                      (a) Causes bodily injury to a person; or
                      (b) Makes physical contact of an offensive, insulting, or
                      provoking nature with a person.
       (2) Physical contact in (1)(b) shall include, but is not limited to, spitting,
       kissing, pinching, poking, shoving or intimidating touching.

(emphasis added).

       Mr. Esparza appeared for an arraignment hearing, entered a not guilty plea, and

signed a notice acknowledging the trial had been set for January 20, 2004. The signed

notice also acknowledged his understanding that if he failed to appear, the trial could be

held in his absence, and a bench warrant could be issued for his arrest. Mr. Esparza did

not appear, and as a result a bench warrant was issued. The trial was reset for March 30,

2004. Mr. Esparza again failed to appear, and was convicted in absentia. He has not yet

been sentenced.

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       Mr. Esparza originally filed his § 2254 petition in Montana. That court found that

it did not have jurisdiction, and transferred the action to Utah. The Utah district court

dismissed the action finding that (1) it lacked jurisdiction because Mr. Esparza is not “in

custody” as required by the language of § 2254(a); and (2) alternatively, because he did

not exhaust his state court remedies.



                                        DISCUSSION

        In order to obtain a COA, Mr. Esparza must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). He may make this showing by

demonstrating that “reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks omitted). “[A] claim can be

debatable even though every jurist of reason might agree, after the COA has been granted

and the case has received full consideration, that [the] petitioner will not prevail.” Id. at

338. Because Mr. Esparza proceeds pro se, we construe his pleadings liberally. Cannon

v. Mullin, 383 F.3d 1152, 1160 (10th Cir. 2004).

       Reasonable jurists could not debate whether Mr. Esparza’s petition should have

been resolved differently. “Federal courts may grant habeas relief to prisoners held by

state authorities only when the habeas petitioner is ‘in custody in violation of the

Constitution or laws or treaties of the United States.’” Foster v. Booher, 296 F.3d 947,

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949 (10th Cir. 2002) (quoting § 2254). We hold that Mr. Esparza is not “in custody” as

required by the statute and case law, for substantially the same reasons as the district

court.

         In order to meet § 2254’s requirements, Mr. Esparza must be “‘in custody’ under

the conviction or sentence under attack at the time his petition is filed.” Maleng v. Cook,

490 U.S. 488, 490-91 (1989). The bench warrant issued not from his conviction, but

because he failed to appear for the original bench trial. Further, Mr. Esparza has never

been sentenced. Therefore, he is not “in custody” under a conviction or sentence and the

district court did not err in finding that it lacked jurisdiction.

         We also agree with the district court that Mr. Esparza failed to exhaust his

administrative remedies. Mr. Esparza argues that the state court prevented him from

exhausting his claims because it denied his notice of appeal as premature. “As a general

rule, a[] [Utah] appellate court lacks jurisdiction over an appeal that is not taken from a

final order or judgment.” Anderson v. Wilshire Investments, L.L.C., 123 P.3d 393, 395

(Utah 2005). Because Mr. Esparza has not yet been sentenced, there is no final order the

state court can hear on appeal. Therefore, he has not exhausted his state remedies, and

the district court properly found that it lacked jurisdiction for this alternative reason.




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                                 CONCLUSION

      Accordingly, we DENY Mr. Esparza’s application for a COA and DISMISS this

matter.

                                           Entered for the court,




                                           ELISABETH A. SHUMAKER, Clerk




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