                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JUL 11 2000
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


JOE R. McBRIDE,

          Petitioner-Appellant,
                                                       No. 00-6098
v.                                               (W. District of Oklahoma)
                                                 (D.C. No. 00-CV-229-M)
GLYNN BOOHER, Warden,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.



      After examining Petitioner’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).

The court therefore orders the case 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       This order and judgment is not binding precedent, except under the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. 36.3.
       Joe R. McBride, proceeding       pro se , seeks a certificate of appealability

(“COA”) so he can appeal the district court’s denial of his 28 U.S.C. § 2254

habeas petition.   See 28 U.S.C. § 2253(c)(1)(A) (providing that an appeal may

not be taken from the denial of a § 2254 habeas petition unless the petitioner first

obtains a COA). Additionally, although the district court denied McBride’s

motion to proceed in forma pauperis on appeal, McBride has renewed that

request by filing a motion to proceed     in forma pauperis with this court.

McBride’s motion to proceed     in forma pauperis is granted.

        In 1993, McBride was convicted of escaping from a penitentiary and

sentenced to a two-year term of incarceration by the Oklahoma County District

Court. McBride completed his sentence on or about June 19, 1995 and was

released from incarceration. In 1997, McBride was arrested on unrelated

charges, pleaded guilty, and was sentenced to ten years’ imprisonment. McBride

is currently incarcerated on the 1997 charges.

       McBride filed the instant § 2254 habeas petition with the United States

District Court for the Western District of Oklahoma on February 2, 2000. In the

petition, McBride raised several challenges to the constitutionality of his 1993

conviction and sentence. He then claimed that the 1993 “unconstitutional

conviction” was used to enhance the sentence he received for the offenses to

which he pleaded guilty in 1997.


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       McBride’s habeas petition was referred to a United States magistrate judge.

The magistrate prepared a Report and Recommendation (“R & R”) recommending

that McBride’s habeas petition be dismissed. The R & R concluded that McBride

could not satisfy the “in custody” requirement of 28 U.S.C. § 2254 and,

therefore, the court did not have jurisdiction over his petition. McBride filed a

timely objection to the R & R which the district court considered. The district

court, however, adopted the R & R and dismissed McBride’s habeas petition.

McBride appealed.

       This court does not have jurisdiction over a § 2254 habeas petition unless

the petitioner is “in custody” under the conviction he attacks.   See 28 U.S.C. §

2254(b); Maleng v. Cook , 590 U.S. 488, 491-92 (1989) (per curiam). McBride’s

incarceration under the conviction that is the subject of the instant habeas

petition ended on June 19, 1995. Although McBride claims the 1993 conviction

has been used to enhance the sentence he is currently serving on unrelated

charges, it is well-settled that collateral consequences are not sufficient to satisfy

the “in custody” requirement of § 2254.      See Maleng , 590 U.S. at 492 (“The

question presented by this case is whether a habeas petitioner remains ‘in

custody’ under a conviction after the sentence imposed for it has fully expired,

merely because of the possibility that the prior conviction will be used to enhance

the sentences imposed for any subsequent crimes of which he is convicted. We


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hold that he does not.”). This court has held that “even when a fully-expired

conviction has, in fact, been used to enhance a subsequent sentence, it may not be

attacked directly in a habeas action.”   Gamble v. Parsons , 898 F.2d 117, 118

(10th Cir. 1990). If a petitioner is currently serving a sentence that has been

enhanced by the expired sentence, however, the expired sentence can be attacked

in a habeas petition challenging the petitioner’s current term of incarceration.

See id.

       The magistrate judge noted that McBride has filed a separate habeas

petition challenging the 1997 convictions and that this petition is currently

pending in the United States District Court for the Western District of Oklahoma.

In light of the fact that McBride’s term of incarceration on the conviction he

attacks in this habeas petition has fully expired, this court lacks jurisdiction over

his appeal. McBride must raise any claims relating to the constitutionality of his

1993 conviction in the habeas petition he has filed wherein he challenges the

constitutionality of his current term of incarceration.

       McBride is not entitled to receive a COA unless he can make “a substantial

showing of the denial of a constitutional federal right.” 28 U.S.C. § 2253(c)(2).

McBride can make such a showing by demonstrating the issues raised are

debatable among jurists, a court could resolve the issues differently, or that the




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questions presented deserve further proceedings.    See Slack v. McDaniel , 120 S.

Ct. 1595, 1603-04 (2000).

      Upon review of McBride’s application for a COA and appellate brief and

de novo review of the R & R, the district court’s order, and the entire record on

appeal, this court concludes the issues raised by McBride are not reasonably

debatable, subject to a different resolution on appeal, or deserving of further

proceedings. Consequently, McBride has not made a substantial showing of the

denial of a federal right as required by 28 U.S.C. § 2253(c)(2) and he is not

entitled to a COA. Accordingly, we     deny McBride’s application for a COA       for

substantially those reasons set out in the R & R dated February 23, 2000, and

dismiss his appeal.



                                        ENTERED FOR THE COURT



                                        Michael R. Murphy
                                        Circuit Judge




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