Peggy Sandoval v. Municipal Court, San Juan County Tom Udall, Attorney General for the State of New Mexico

134 F.3d 383, 1998 U.S. App. LEXIS 4639, 1998 WL 30240

• Court: Court of Appeals for the Tenth Circuit
• Decided: January 9, 1998
• Docket: 97-2098
• Status: Published

Opinion

134 F.3d 383

98 CJ C.A.R. 180

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Peggy SANDOVAL, Petitioner-Appellant,
v.
MUNICIPAL COURT, San Juan County; Tom Udall, Attorney
General for the State of New Mexico, Respondents-Appellees.

No. 97-2098.

United States Court of Appeals, Tenth Circuit.

Jan. 9, 1998.

Before BRORBY, EBEL, and KELLY, Circuit Judges.**

ORDER AND JUDGMENT*

PAUL J. KELLY, Jr., Circuit Judge.

Petitioner-appellant Peggy Sandoval, appearing pro se, appeals from the denial of her habeas petition, 28 U.S.C. § 2254, and dismissal of the action for lack of jurisdiction. The district court denied a certificate of appealability and it does not appear that Ms. Sandoval has applied for one in this court. See 28 U.S.C. § 2253(c)(2). Despite the invocation of various constitutional provisions and claims for general relief, the petition was properly construed as a collateral attack on the conviction. The district court adopted the magistrate judge's conclusion that Ms. Sandoval could not satisfy the "in custody" requirement of habeas corpus based solely on a speeding conviction resulting in a $30.00 fine and a $17.00 assessment of court costs. See United States v. Watroba, 56 F.3d 28, 29 (6th Cir.), cert. denied, 116 S.Ct. 269 (1995) ( § 2255); United States v. Segler, 37 F.3d 1131, 1137 (5th Cir.1994) (same); Spring v. Caldwell, 692 F.2d 994, 999 (5th Cir.1982) ( § 2254). We agree.

We construe Ms. Sandoval's opening brief as an application for a certificate of appealability, DENY it, and DISMISS the appeal.

** After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The cause 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. This 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