United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
MATTER is before the Court under Rule 4 of the Rules
Governing Section 2254 Proceedings on the Petition Under 28
U.S.C. § 2254 for Writ of Habeas Corpus by a Person in
State Custody filed by Frank Costelon on December 5, 2016
(“Petition”) (Doc. 1). The Court will dismiss the
Petition for lack of jurisdiction because Petitioner Costelon
is not in state custody pursuant to a judgment of a state
court and on the grounds that the Petition is barred by the
statute of limitations of 28 U.S.C. § 2244(d)(1).
is currently incarcerated at the United States Penitentiary,
Leavenworth, Kansas, on a federal conviction and sentence
entered against him in the United States District Court for
the Western District of Texas. See United States of
America v. Frank Emmanuel Costelon, No. CR 11-01895. In
this proceeding, he does not seek to challenge his federal
conviction or sentence. Instead, he seeks to collaterally
attack a 2003 conviction by the New Mexico state courts.
(Doc. 1 at 1).
February 13, 2003, Costelon was indicted by a New Mexico
Grand Jury on charges of distribution of marijuana. Costelon
was convicted pursuant to a guilty plea and Judgment was
entered on July 28, 2003. Costelon was sentenced to three
years of imprisonment, followed by two years of parole.
See State of New Mexico v. Frank Emanuel Costelon,
State of New Mexico, County of Dona Ana, Third Judicial
District case no. D-307-CR-2003-00126. The Court takes
judicial notice of the records in case no.
D-307-CR-2003-00126. United States v. Ahidley, 486
F.3d 1184, 1192 n. 5 (10th Cir.2007) (The Court may take
judicial notice of publicly filed records in this court and
other courts concerning matters that bear directly upon the
disposition of the case at hand); Shoulders v.
Dinwiddie, 2006 WL 2792671 (W.D.Okla.2006) (court may
take judicial notice of state court records available on the
world wide web including docket sheets in district courts).
ten years after entry of the judgment in case no.
D-307-CR-2003-00126, Costelon filed a Petition for Writ of
Coram Nobis to Set Aside Judgment of Conviction
Pursuant to Rule 1-060(B) N.M.R.A. The Petition was summarily
dismissed by the State District Judge on February 18, 2013
based on waiver of collateral review by Costelon's entry
of a guilty plea. On February 7, 2014, the New Mexico Court
of Appeals reversed the summary dismissal and remanded the
matter to the District Court for consideration of the
Coram Nobis Petition on the merits. See
D-307-CR-2003-00126. The District Court then substantively
reviewed and dismissed the Petition on its merits. Costelon
appealed the ruling to the New Mexico Court of Appeals, which
affirmed the District Court's dismissal on September 29,
2015. (Doc. 2-2 at 2-7). Costelon filed a request for
rehearing, which the Court of Appeals granted before issuing
a substituted decision of affirmance on November 4, 2015.
See D-307-CR-2003-00126. The New Mexico Supreme
Court denied Costelon's Petition for Writ of Certiorari
on January 6, 2016. (Doc. 2-3 at 2-3). Costelon then filed
his § 2254 Petition in this Court on December 5, 2016.
Costelon is Not In Custody Pursuant to a State
Judgment: Section 2254(a) requires a petitioner
to be “in custody pursuant to the judgment of a State
court ... in violation of the Constitution or laws or
treaties of the United States.” The in-custody
requirement of § 2254(a) is jurisdictional. Mays v.
Dinwiddie, 580 F.3d 1136, 1139 (10th Cir.2009). A
petitioner must satisfy the custody requirement at the time
the habeas petition is filed. Spencer v. Kemna, 523
U.S. 1, 7 (1998).
prisoner need not, however, show actual, physical custody to
obtain relief. Maleng v. Cook, 490 U.S. 488, 491
(1989) (per curiam). Habeas corpus relief under § 2254
is available for prisoners released on parole or personal
recognizance. Jones v. Cunningham, 371 U.S. 236,
242- 43 (1963) (parole); Hensley v. Municipal Court,
411 U.S. 345, 346 (1973) (personal recognizance). Such relief
is also available to prisoners serving consecutive sentences,
aliens seeking entry into the United States, and persons
“questioning the legality of an induction or enlistment
into the military service.” Garlotte v.
Fordice, 515 U.S. 39, 46-47 (1995); Duncan v.
Walker, 533 U.S. 167, 176 (2001); Jones, 371
U.S. at 240 & n. 9, 11.
writ of habeas corpus is available in situations where a
state-court criminal conviction has subjected the petitioner
to “severe restraints on [his or her] individual
liberty.” Hensley, 411 U.S. at 351. A
restraint is severe when it is “not shared by the
public generally.” Jones, 371 U.S. at 240. But
the remedy of a writ of habeas corpus is not “generally
available ... for every violation of federal rights.”
Lehman v. Lycoming Cnty. Children's Servs.
Agency, 458 U.S. 502, 510 (1982). “Thus, the
collateral consequences of a conviction, those consequences
with negligible effects on a petitioner's physical
liberty of movement, are insufficient to satisfy the custody
requirement.” Virsnieks v. Smith, 521 F.3d
707, 718 (7th Cir.2008) (collecting cases). Effects, such as
the payment of restitution or a fine, inability to vote, hold
public office, or serve as a juror, are not the sort of
significant restraint on liberty contemplated in the custody
requirement of the federal habeas statutes. Erlandson v.
Northglenn Mun. Court, 528 F.3d 785, 788 (10th
Cir.2008); Maleng, 490 U.S. at 491-92;
Williamson v. Gregoire, 151 F.3d 1180, 1183 (9th
Cir.1998); Calhoun v. Attorney Gen. of Colorado, 745
F.3d 1070, 1073-74 (10th Cir. 2014).
has completed his sentence in D-307-CR-2003-00126 and is no
longer incarcerated or on probation for the conviction in
that case. Nor does Costelon allege any other ongoing
restraint on his liberty as a consequence of the conviction.
Costelon is not “in custody pursuant to the judgment of
a State court” as required by 28 U.S.C. § 2254. As
a result, this Court lacks jurisdiction and will dismiss
Costelon's Petition. Mays v. Dinwiddie, 580 F.3d
Costelon's Claims are Barred by the Statute of
Limitations: Even if Costelon is in custody for
purposes of § 2254, his Petition is subject to dismissal
because it was not filed within the one-year statute of
limitations governing § 2254 proceedings. Petitions for
a writ of habeas corpus by a person in state custody are
governed by a one-year statute of limitations. 28 U.S.C.
§ 2244(d). Section 2244(d)(1) states:
“A 1-year period of limitation shall apply to an
application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court. The
limitation period shall run from the latest of-
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the