Hughes v. Stancil

Opinion

Appellate Case: 25-1426 Document: 29-1 Date Filed: 07/23/2026 Page: 1 FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS July 23, 2026 FOR THE TENTH CIRCUIT _________________________________ Christopher M. Wolpert Clerk of Court MARSHALL HUGHES,

Petitioner - Appellant,

v. No. 25-1426 (D.C. No. 1:25-CV-01980-LTB-RTG) ANDRE STANCIL, Executive (D. Colo.) Director, Colorado Department of Corrections; PHIL WEISER, Attorney General, State of Colorado,

Respondents - Appellees. _________________________________

ORDER AND JUDGMENT * _________________________________

Before PHILLIPS, KELLY, and FEDERICO, Circuit Judges. _________________________________

In his appeal from a petition for writ of habeas corpus, Marshall

Hughes contends that he was denied effective assistance of counsel in

Colorado state court. That denial, he argues, resulted in a conviction that

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This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 25-1426 Document: 29-1 Date Filed: 07/23/2026 Page: 2

has barred him from military service. We conclude, though, that this bar on

military service stems from an Army regulation, not the state court

judgment of which he complains. As a result, the federal courts are not

granted authority under the habeas statute to hear Marshall’s claim. Thus,

we affirm the district court’s dismissal of the petition.

I

A

In December 2013, Marshall Hughes was an Army captain returning

to Colorado Springs from an Afghanistan deployment. Waiting for him was

his girlfriend from before the deployment, Ashley Brobeck. A few days after

Hughes’ return, he and Brobeck went out to a bar together. They got into

an argument on the bar’s patio that escalated into a physical altercation.

The couple later returned to their hotel room, which was ultimately

damaged.

Brobeck later reported to law enforcement that Hughes had assaulted

her outside the bar, thrown her to the ground, and hit her. And, in

connection with this incident, state prosecutors charged Hughes with seven

criminal counts: six misdemeanors and a single felony count of criminal

mischief relating to the hotel room damage. At trial, a state-court jury found

him not guilty of five misdemeanor counts. It convicted him, though, of

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misdemeanor harassment and felony criminal mischief involving an act of

domestic violence.

Hughes then turned to the Colorado appellate and post-conviction

processes. He petitioned the Colorado Court of Appeals for a writ of

certiorari. When that was denied, he moved for post-conviction relief in the

trial court alleging ineffective assistance of counsel (IAC). The state trial

court held an evidentiary hearing but found that Hughes had failed to meet

his burden and denied his petition for post-conviction relief. Hughes then

appealed the denial of his state IAC claims to the Colorado Court of Appeals.

There, he found purchase. The court of appeals denied Hughes’ claim

pertaining to the criminal mischief conviction, which it reasoned would not

have been undermined by additional evidence that Hughes’ trial counsel

failed to develop. However, it reversed Hughes’ conviction for harassment.

The court of appeals reasoned that Hughes’ trial attorney had prejudiced

his case by failing to argue the alleged evidence of harassment was

constitutionally protected speech. Hughes petitioned the Colorado Supreme

Court for a writ of certiorari regarding the criminal mischief conviction, but

the state high court denied his petition.

B

It was then that Hughes turned to the federal courts. He filed in the

District of Colorado a petition for a writ of habeas corpus arising under 28

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U.S.C. § 2254. The petition alleged a single IAC claim attacking his sole

remaining count of conviction for criminal mischief. In the petition, Hughes

argued that his trial attorney had rendered deficient performance by failing

to investigate his case. According to Hughes’ post-conviction investigation,

the bar’s head of security had witnessed their argument and testified that

although Brobeck had drunkenly shoved Hughes outside the bar, Hughes

did not reciprocate. Instead, Hughes had tried to de-escalate the altercation

without physical force.

This, Hughes argued, would have benefitted his case at trial in three

ways. First, it would have undermined Brobeck’s credibility by

demonstrating that the complaining witness was intoxicated during the

events in question and thus her recollection may have been unreliable.

Second, it would have undermined Brobeck’s testimony that Hughes had

been motivated to damage the hotel room because of self-loathing stemming

from the assault. And, third, the evidence of Brobeck’s drunken violence

could have supported the alternative defense narrative that it was Brobeck,

not Hughes, who damaged the hotel room. Thus, Hughes argued he could

demonstrate both deficiency and prejudice sufficient to sustain an IAC

claim on Sixth Amendment grounds.

The district court, though, did not reach the merits of this argument.

Instead, it adopted the recommendation of a magistrate judge to dismiss

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the habeas petition because Hughes was not in custody pursuant to a state

court judgment when he filed the petition, as required by the habeas

statute. See 28 U.S.C. § 2254. Hughes timely appealed to this court and

requested a certificate of appealability (COA) in so doing. We granted his

request for a COA. See 28 U.S.C. § 2253(c). Exercising jurisdiction under 28

U.S.C. §§ 1291 and 2253, we now affirm.

II

The federal courts have authority to hear “an application for a writ of

habeas corpus in behalf of a person in custody pursuant to the judgment of

a State court” where that custody violates federal law. 28 U.S.C. § 2254(a).

The statutory language “requires habeas petitioners to be ‘in custody’ under

the conviction or sentence under attack when they file the petition.”

Erlandson v. Northglenn Mun. Ct., 528 F.3d 785, 788 (10th Cir. 2008)

(quoting Broomes v. Ashcroft, 358 F.3d 1251, 1254 (10th Cir. 2004)). If a

petitioner is not in custody, the federal courts have no authority to hear the

petition. And, so too, if the petitioner is in custody – but not “pursuant to”

a state court judgment – the petition will be unavailing.

The district court dismissed Hughes’ habeas petition because he was

not in custody; we construe this as a dismissal under Federal Rule of Civil

Procedure 12(b)(1) for lack of subject matter jurisdiction. Erlandson, 528

F.3d at 788. Thus, our review is de novo. Calhoun v. Att’y Gen. of Colorado,

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745 F.3d 1070, 1073 (10th Cir. 2014). “We may affirm the dismissal on any

grounds for which there is a record sufficient to permit conclusions of law,

even grounds not relied upon by the district court.” Erlandson, 528 F.3d at

788 (quoting Mann v. Boatright, 477 F.3d 1140, 1145 (10th Cir. 2007)).

III

Hughes, in his opening brief, argued that the district court erred when

it determined that he was not “in custody” for the purposes of the habeas

statute. Op. Br. at 23–26. Hughes reasons that – although he is not

physically restrained in the traditional sense – the federal courts

nonetheless have jurisdiction because his conviction has rendered him

ineligible to serve again in the military. This, he argues, is a custodial

restraint in the meaning of § 2254.

The Government in opposition argues that the ineligibility to serve in

the military is a mere “collateral consequence[]” of conviction and

insufficient to render Hughes in custody. Resp. Br. at 9 (quoting Calhoun,

745 F.3d at 1073–74). In the alternative, the Government argues that even

if the prohibition on military service is custodial, it is not “pursuant to the

judgment of a State court” as required by statute. See 28 U.S.C. § 2254(a);

Resp. Br. at 14–17.

We agree with the Government’s second point. Whether or not

Hughes’ ineligibility to serve in the military is custodial in the meaning of

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§ 2254, it is not rendered “pursuant to” a state court judgment. Instead, this

consequence – Hughes now being ineligible for future military service –

flows from an Army policy that is not at issue here. Thus, we affirm the

judgment of the district court.

The result is necessitated by the language of the statute and our

caselaw. Section 2254 provides the federal courts jurisdiction over habeas

petitions on behalf of people who are “in custody pursuant to the judgment

of a State court” at the time of the petition. 28 U.S.C. § 2254(a). Thus, in

addition to demonstrating the existence of custody, the petitioner must

demonstrate that their status stems from the state court judgment being

challenged. Broomes, 358 F.3d at 1254, abrogated on other grounds by

Padilla v. Kentucky, 559 U.S. 356 (2010); see also Carthen v. Workman, 121

F. App’x 344, 346 n.1 (10th Cir. 2005). 1 This court has concluded that the

statutory term “‘judgment of a State Court’ within § 2254 refers only to

conviction and sentence.” Walck v. Edmondson, 472 F.3d 1227, 1234 (10th

Cir. 2007) (citing cases). The statute requires that the petitioner be “‘in

custody’ under the conviction or sentence under attack.” Erlandson, 528

F.3d at 788 (quotation omitted). So, where a person’s grievance is “beyond

the control and responsibility of the district court in which th[e] conviction

1 We cite unpublished decisions for their persuasive value only and do

not treat them as binding precedent. 10th Cir. R. 32.1(A). 7 Appellate Case: 25-1426 Document: 29-1 Date Filed: 07/23/2026 Page: 8

was entered,” they complain of a collateral consequence that will not

establish statutory jurisdiction under § 2254. Broomes, 358 F.3d at 1256–

57 (quoting United States v. Gonzalez, 202 F.3d 20, 27 (1st Cir. 2000)).

Also instructive here is the Third Circuit’s opinion in Piasecki v. Court

of Common Pleas, 917 F.3d 161 (3d Cir. 2019). There, the petitioner filed

for a writ of habeas corpus under § 2254 contending that his was in custody

by virtue of Pennsylvania’s sex offender registration requirements. Id. at

165–66. The Third Circuit acknowledged that other states’ registration

requirements had been deemed collateral consequences. Id. at 172. But

Piasecki’s written judgment and sentence stated that he would be required

to register as a sex offender, id. at 173, and thus he “became subject to [the]

registration requirements as a ‘direct consequence of the conviction’ being

challenged,” id. at 176 (alteration adopted). Because the registration regime

was “imposed pursuant to – and included in – the judgment” it had “direct

relation to the judgment of sentence” sufficient to set it apart “from

consequences that are truly collateral.” Id. at 176–77.

Here, in contrast, the record gives no indication that the Colorado

state court sentence contemplated any effect on Hughes’ eligibility to serve

in the military. Hughes does not dispute that the prohibition on his military

service was rendered by Army policy, not the state court. Compare Resp.

Br. at 15–16 with Reply Br. at 8. Instead, he argues that his discharge from

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the military “was a direct effect” of the state court conviction. Reply Br. at

8. However, “mere but-for causation is not enough to establish custody

‘pursuant to’ a state court judgment.” Wright v. State, 47 F.4th 954, 960 (9th

Cir. 2022). Any other conclusion would run contrary to the Supreme Court’s

teaching that collateral consequences of a conviction do not create statutory

jurisdiction under § 2254. See Maleng v. Cook, 490 U.S. 488, 491–92 (1989).

“Under Maleng, a causal relationship between the [complained-of

consequence] and the [challenged] conviction does not mean that [the

petitioner] is ‘in custody’ on that conviction.” United States v. Reymundo-

Lima, 643 F. App’x 668, 669 (10th Cir. 2016) (order denying certificate of

appealability); accord Chiwanga v. Drummond, No. 23-5136, 2024 WL

2723273, at *3 (10th Cir. May 28, 2024) (unpublished) (order denying

certificate of appealability). The complained-of consequence must be

imposed by the state court judgment and sentence at issue. Those are not

the circumstances here.

Because we conclude that the alleged injury was not imposed by the

state court judgment, we need not determine whether Marshall is in custody

for the purposes of § 2254. In any event, we do not have statutory authority

to hear the petition. So, like the district court, we decline to pass on the

merits of Marshall’s claim.

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AFFIRMED.

Entered for the Court

Richard E.N. Federico Circuit Judge