Thelen v. State of Oklahoma
This text of Thelen v. State of Oklahoma (Thelen v. State of Oklahoma) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
FILED United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS August 13, 2010 TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court
PATRICK THELEN,
Petitioner-Appellant, No. 10-5063 v. (N.D. of Okla.) STATE OF OKLAHOMA, and W. A. (D.C. No. 4:09-CV-00767-CVE-TLW) SHERROD, Warden,
Defendant-Appellant.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges. **
Patrick Thelen, a federal prisoner appearing pro se, seeks a certificate of
appealability (COA) to appeal from the dismissal of his habeas petition brought
pursuant to 28 U.S.C. § 2241. The district court dismissed the petition for lack of
jurisdiction. Having jurisdiction pursuant to 28 U.S.C. § 1291, we DENY
Mitchell’s request for a COA and DISMISS this appeal.
* This order is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. ** 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(G). The cause is therefore ordered submitted without oral argument. I. Background
Thelen pleaded guilty in 1986 in Oklahoma state court on marijuana
charges. As a part of the plea agreement, the state court withheld a finding of
guilt and deferred Thelen’s sentencing for five years. In 1988, the State of
Oklahoma filed an application to accelerate judgment, and Thelen followed that
two years later with a habeas petition to the state court requesting the court
resolve the application to accelerate. Although it appears from the record the
state court never ruled on Thelen’s petition or the government’s application to
accelerate, the government eventually filed a motion to withdraw the application
to accelerate on March 4, 1998. The state court granted that motion.
In separate proceedings in the federal District Court for the Eastern District
of Michigan, a jury convicted Thelen in June of 1997 of two counts of drug
trafficking and one count of being a felon in possession of a firearm. See Thelen
v. United States, F. App’x 61, 62 (6th Cir. 2005). During sentencing, the federal
district court found Thelen’s state court conviction was a “prior felony
conviction” for purposes of sentencing him as a career offender. See USSG
§ 4B1.2 cmt. n.1 (1997).
Thelen, now serving his federal sentence in Oklahoma, filed this petition
for a writ of habeas corpus in 2009 challenging the state court conviction and
arguing it was not properly expunged. Although he filed it as a 28 U.S.C. § 2254
petition, the district court characterized it as a petition pursuant to 28 U.S.C.
-2- § 2241 because Thelen was not in state custody and his claims did not relate to
his guilty plea in state court. The district court then denied Thelen’s petition for
lack of jurisdiction, noting Thelen was no longer in custody under the state
sentence he was challenging.
II. Discussion
Although a petitioner ordinarily does not need a COA to appeal a district
court’s denial of a habeas petition brought pursuant to § 2241, we have held a
COA is necessary “whenever ‘the detention complained of [in the petition] arises
out of process issued by a State court.’” Montez v. McKinna, 208 F.3d 862, 867
(10th Cir. 2000) (quoting 28 U.S.C. § 2253(c)(1)(A)). Thelen complains the state
court has not provided proper process regarding his deferred state sentence. A
COA is therefore necessary.
A COA will issue “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When, as is the case
here, the district court denies the petition on procedural grounds, we will issue a
COA only if the petitioner demonstrates “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court
was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). We conclude the district court was correct in its procedural ruling that it
lacked jurisdiction to consider Thelen’s petition.
-3- District courts have “jurisdiction to entertain petitions for habeas relief
only from persons who are ‘in custody in violation of the Constitution or laws or
treaties of the United States.’” Maleng v. Cook, 490 U.S. 488, 490 (1989)
(quoting 28 U.S.C. § 2241(c)(3)). The Supreme Court has “interpreted the
statutory language as requiring that the habeas petitioner be ‘in custody’ under the
conviction or sentence under attack at the time his petition is filed.” Id. at
490–91.
Thelen apparently challenges the execution of his 1986 deferred sentence,
claiming that it has not been properly expunged from official records. See O KLA .
S TAT . A NN . tit. 22, § 991c(C) (West 2003). But nothing in the record indicates
Thelen is in custody under the 1986 conviction. Instead, the five-year deferred
sentence expired long before Thelen filed this petition, so he cannot claim to be in
literal custody, and the collateral consequences of convictions such as these “are
not themselves sufficient to render an individual ‘in custody’ for the purposes of a
habeas attack upon it.” Maleng, 490 U.S. at 492. Further, even if the 1986
conviction enhanced Thelen’s 1997 federal sentence, the Supreme Court has held
that a person is not in custody “simply because [a prior and expired state court]
conviction has been used to enhance the length of a current or future sentence
imposed for a subsequent conviction.” Id. at 491. The district court was correct
to conclude it lacked jurisdiction to consider Thelen’s habeas claims.
-4- To the extent Thelen challenges the enhancement of his federal sentence by
the deferred state sentence, a § 2241 petition filed where he is currently
confined—the Northern District of Oklahoma—is not the appropriate method. As
we have previously explained, “A petition under 28 U.S.C. § 2241 attacks the
execution of a sentence rather than its validity and must be filed in the district
where the prisoner is confined. . . . A 28 U.S.C.
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