The opinion of the court was delivered by: Marilyn L. Huff United States District Judge
ORDER DENYING REQUEST FOR CERTIFICATE OF APPEALABILITY
On March, 17, 2011, Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 along with a motion for leave to proceed in forma pauperis. On April 25, 2011, the Court issued an Order granting the request to proceed in forma pauperis and dismissing the petition because Petitioner had not satisfied the jurisdictional "in custody" requirement. (ECF No. 4.) Petitioner filed a Motion for Reconsideration of that Order. (ECF No. 5.) On the same day, Petitioner filed a Notice of Appeal. (ECF No. 7.)*fn1 Petitioner then filed a supplemental request for reconsideration on July 15, 2011. (ECF. No. 9.) On July 19, 2011, this Court denied Petitioner's motion and supplemental motion for reconsideration. (ECF No. 10.) On August 18, 2011, Petitioner filed a request for issuance of certificate of appealability. (ECF No. 12.)
A certificate of appealability is authorized "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2). "A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); see also Slack v. McDaniel, 529 U.S. 473, 484 (2000). The issue becomes somewhat more complicated where the district court dismisses the petition based on procedural grounds. Lambright v. Stewart, 220 F.3d 1022 (9th Cir. 2000). "When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, 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." Id.
The Court finds Petitioner has failed to demonstrate that "reasonable jurists could disagree" with this Court's conclusion that he is not "in custody" as required under 28 U.S.C. § 2254. As discussed in this Court's April 25, 2011 Order, "Subject matter jurisdiction under the federal habeas corpus statute, 28 U.S.C. § 2254(a), is limited to those persons 'in custody pursuant to the judgment of a State.'" Brock v. Weston, 31 F.3d 887, 889 (9th Cir. 1994); see also 28 U.S.C. § 2241(c)(3). It is a jurisdictional requirement that, at the time a habeas petition is filed, "the habeas petitioner be 'in custody' under the conviction or sentence under attack." Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citing 28 U.S.C. §§ 2241(c)(3) & 2254(a)); see Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). In the Petition, Petitioner challenges the 8 year sentence he received in 1985, which Petitioner acknowledges has "expired." (SeePet. at 2.) Petitioner challenged his 1985 conviction in state court on both direct and collateral review and was unsuccessful. (See e.g. Pet. Exs. 1 and 2.)
Petitioner has not made a "substantial showing" that the conviction he challenges falls under any exception to the custody requirement. As discussed in this Court's Order denying Petitioner's Motion for Reconsideration, a petitioner is not "'in custody' under a conviction after the sentence imposed for it has fully expired" but later used to enhance a sentence imposed for a subsequent conviction.*fn2 Maleng, 490 U.S. at 492. Further, in Lackawanna, the Supreme Court held that a habeas petitioner may not collaterally challenge a prior conviction which is "no longer open to direct or collateral attack in its own right," unless "there was a failure to appoint counsel in violation of the Sixth Amendment [and Gideon v. Wainwright, 372 U.S. 335 (1963)]." Lackawanna Co. Dist. Atty. v. Coss, 532 U.S. 394 (2001). Here, Petitioner alleges his 1985 guilty plea was unknowing and intelligent and that defense counsel was ineffective. Thus, Petitioner has failed to make a substantial showing that his claims fall under the Lackawanna exception. Id.
For the foregoing reasons and the reasons set forth in this Court's previous Orders, Petitioner's request for certificate of appealability is DENIED.