McCormick v. Kline

FILED
United States Court of Appeals
Tenth Circuit

July 14, 2009
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DALE E. MCCORMICK,

Petitioner-Appellant,

v.
No. 07-3213
PHIL KLINE, Attorney General;
DAVID MCCUNE, Warden,

Respondents-Appellees.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 06-CV-3098-SAC)

Stephen Kessler, Topeka, Kansas (Dale E. McCormick, pro se, with him on the
briefs), for Petitioner-Appellant Dale E. McCormick.

Jared Maag, Deputy Solicitor General, Topeka, Kansas, for Respondents-
Appellees Phil Kline and David McKune.

Before MCCONNELL, EBEL and GORSUCH, Circuit Judges.

EBEL, Circuit Judge.

Kansas prisoner Dale McCormick (“McCormick”) appeals the district

court’s dismissal of his pro se petition for writ of habeas corpus under 28 U.S.C.

§ 2254. The district court dismissed the petition on the ground that McCormick is
no longer in custody for the 2001 convictions he challenges, and thus that the

court lacked jurisdiction to hear his claims. The district court granted

McCormick a Certificate of Appealability (“COA”) on the issue of whether

McCormick is in custody on the 2001 convictions, and McCormick requests a

COA on two additional merits issues.

Exercising appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253, we

AFFIRM the district court’s dismissal of the petition and DENY McCormick’s

application for additional COAs.

I. Factual and procedural background

A. McCormick’s 2001 convictions and appeals

On the night of January 22, 2000, a Lawrence, Kansas, police officer

observed McCormick driving 45 miles per hour in a 30-mile-per-hour zone. The

officer stopped McCormick and asked him for his driver’s license, vehicle

registration, and insurance information. When McCormick, whom the officer

believed to be “exceptionally nervous” and “acting unusual during the stop,” was

unable to produce that documentation, the officer asked McCormick to exit the

car, so that the officer could search him for weapons and identification. (2002

Kan. Ct. App. opinion at 2.) McCormick refused, telling the officer that he was a

law student and reciting a Kansas Court of Appeals (“KCOA”) ruling that a

motorist’s indication that he does not have identification does not justify a police

officer’s search of the motorist.

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 A back-up officer then arrived on the scene, and the officers instructed

McCormick that they would arrest him if he did not exit his vehicle as ordered.

When McCormick again refused to step out of the vehicle, the officers placed him

under arrest and forcibly removed him, pushing him face-down on the pavement.

McCormick continued to resist the officers, who eventually overpowered and

handcuffed him. During a subsequent patdown, the officers discovered a baggie

of marijuana in McCormick’s pants pocket.

In September of 2000, McCormick was tried in Douglas County District

Court on two charges: obstructing official duty in violation of Kan. Stat. Ann.

§ 21-3808, a misdemeanor; and unlawfully possessing or controlling marijuana in

violation of Kan. Stat. Ann. § 65-4162, a felony because of McCormick’s prior

misdemeanor conviction for possession of marijuana. That trial ended in a

mistrial when the jury could not reach a unanimous verdict. In January of 2001,

at his second trial on the same charges, a Douglas County jury convicted

McCormick of both misdemeanor obstruction and felony unlawful possession.

McCormick represented himself at trial, with the assistance of appointed standby

counsel.

McCormick was sentenced to an underlying term of eleven months in state

prison on the marijuana conviction, and a concurrent underlying term of ten days

in the Douglas County Jail on the obstruction conviction; the court then

suspended that sentence and placed him on twelve months’ probation. In

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pronouncing sentence, the trial judge advised McCormick that his probation was

unsupervised and that he would have “no further time to serve in custody”

provided that he “abide[d] by [his] conditions of probation.” (R. vol. XV at 50.)

Those conditions included McCormick’s “obey[ing] all laws.” (Id. at 51.) The

trial judge further explained to McCormick that there would be “a 12-month post

release supervision period should [he] be required to serve the underlying

sentence at any time.” (Id. at 50.) The court then granted McCormick’s request

for appeal bond, staying McCormick’s sentence of probation “until after the

appeal is decided”; once again, the court conditioned the bond on McCormick’s

“not violat[ing] the law.” (Id. at 53-55.)

On direct appeal, McCormick raised seventeen issues for review. The

KCOA found “no merit in any of his issues” and affirmed his convictions on

December 20, 2002. (2002 KCOA opinion at 2, 25.) McCormick appealed the

KCOA’s ruling to the Kansas Supreme Court, which denied discretionary review

on March 24, 2003. The U.S. Supreme Court denied certiorari on October 6,

2003.

McCormick then pursued post-conviction relief in the state courts, filing a

Motion to Set Aside Verdict pursuant to Kan. Stat. Ann. § 60-1507. The § 1507

motion made two arguments: that the trial judge failed to make a detailed inquiry

into whether McCormick knowingly and intelligently waived the right to counsel

when he elected to represent himself at trial, and that the State failed to disclose

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material evidence to McCormick. The same judge who had presided over

McCormick’s trial denied the § 1507 motion on April 21, 2004, 1 explaining that

McCormick had not raised the issue of knowing and intelligent waiver on direct

appeal, that McCormick’s decision to proceed pro se at trial was nonetheless

knowing and intelligent, and that McCormick’s evidentiary claim lacked merit.

McCormick raised only the knowing-and-intelligent-waiver issue on appeal

of his § 1507 motion to the KCOA, which affirmed the trial court’s ruling on

September 2, 2005. The KCOA held that because McCormick had failed to raise

that issue on direct appeal, Kansas law “precluded [him] from doing so” in a

§ 1507 motion. (2005 KCOA opinion at 4 (citing Bruner v. State, 277 Kan. 603,

607 (2004); 2004 Kan. Ct. R. Annot. 221).) Nonetheless, the KCOA went on to

take note of the trial court’s determination that McCormick had made a voluntary

and intelligent decision to represent himself at trial. On December 20, 2005, the

Kansas Supreme Court denied discretionary review of the KCOA’s ruling.

B. McCormick’s 2004 convictions and appeals

On February 16, 2003, while his direct appeal in the 2001 convictions was

pending, McCormick committed crimes for which a Douglas County, Kansas, jury

later convicted him of aggravated kidnapping, aggravated burglary, and

aggravated intimidation of a witness or victim. See State v. McCormick, 159

1
Kansas law assumes that the trial judge will rule on a motion for post-
conviction relief pursuant to § 60-1507. Gilkey v. State, 60 P.3d 351, 353 (Kan.
Ct. App. 2003).

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P.3d 194, 199-202 (Kan. Ct. App. 2007). As a result of these February 2004

convictions, McCormick was sentenced to 213 months’ imprisonment. His

sentence was based in part on his Kansas Criminal History Category of G, the

calculation of which took into account both of McCormick’s 2001 convictions.

McCormick did not object to his Criminal History classification at sentencing.

During the sentencing proceeding, the court explained that McCormick’s

prison terms for aggravated kidnapping (195 months) and aggravated burglary (32

months) would run concurrently, while his prison term for aggravated

intimidation of a witness (18 months) would run consecutively to the others. The

court made no other mention of sentences to which these 2004 sentences would or

could run concurrently or consecutively. The Kansas Sentencing Guidelines

Journal Entry of Judgment (“Journal Entry”) indicated neither that McCormick

had committed the crimes “While on Probation, Parole, etc., for a Felony” or

“While on Felony Bond,” nor that there was any “Prior Case . . . to Which the

Current Sentence is to Run Concurrent or Consecutive.” (Journal Entry at 2, 3.)

On direct appeal of the 2004 convictions, McCormick raised eight issues

for review. Within that direct appeal, he did not challenge (or even mention) the

effect of his Criminal History Category on his sentence, nor did he argue that the

Journal Entry was an erroneous record of his sentence. The KCOA affirmed his

convictions on May 25, 2007, and the Kansas Supreme Court denied discretionary

review on September 27, 2007. McCormick later sought post-conviction relief in

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the state courts, with the Kansas Supreme Court denying relief on December 18,

2007.

McCormick next filed a § 2254 petition in federal court, alleging nine

grounds upon which he was entitled to relief. As on direct appeal, McCormick

challenged neither the effect of his Criminal History Category on his sentence nor

the Journal Entry as an accurate record of that sentence. The district court

dismissed the petition without prejudice on August 8, 2008, because its mixture of

exhausted and unexhausted claims deprived the court of authority, under § 2254,

to review any of those claims. See Rhines v. Weber, 544 U.S. 269, 273 (2005).

We recently denied McCormick’s request for a COA to challenge that dismissal.

McCormick v. Six, 306 F. App’x 424, 425-26 (10th Cir. 2009) (unpublished).

McCormick is presently serving his 213-month sentence on the 2004

convictions.

C. The § 2254 petition at issue in this appeal

On March 27, 2006, McCormick filed a pro se habeas petition challenging

the 2001 convictions and alleging six grounds for relief. The district court

ordered McCormick to show cause why the petition should not be dismissed on

the ground that he was no longer in custody on the 2001 convictions. The district

court also instructed McCormick that he had not yet exhausted his state remedies

on several of the claims made in the habeas petition. The court warned

McCormick that because it lacked authority to reach the merits of a § 2254

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petition containing unexhausted claims, see Rhines, 544 U.S. at 273, the petition

would be dismissed unless McCormick amended it to include only exhausted

claims.

McCormick filed an amended § 2254 petition asserting three grounds for

relief, all of which in substance challenged his 2001 convictions: (1) that

Kansas’s obstruction-of-duty statute, Kan. Stat. Ann. § 21-3808, was

unconstitutional both facially and as applied; (2) that he was permitted to

represent himself at trial despite never having given a valid waiver of his right to

counsel; and (3) that the jury instructions were contrary to federal law. While the

amended petition continued to list McCormick’s 2001 convictions as the

“judgment of conviction” under challenge, it added, in a footnote, the assertion

that because those convictions had been “used to ‘enhance’” the sentence in his

2004 convictions, “this petition is filed in part to attack that ‘enhancement.’”

(Amended § 2254 pet. (2001 convictions) at 13*.) In a separate response to the

show-cause order, McCormick argued for the first time that because he had been

“on ‘probation’” for the 2001 convictions when he began serving the sentence on

his 2004 convictions, Kansas law dictated that his 2001 sentence and 2004

sentence had to run consecutively. (Response to Show Cause Order at 4-6 (citing

Kan. Stat. Ann. § 21-4608(c)).)

The district court ordered the State to respond to the amended petition, and

the State moved to dismiss on the ground that McCormick was no longer in

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custody, for § 2254 purposes, on the 2001 convictions under challenge.

Following expansion of the record with the Journal Entry and Criminal History

Worksheet from McCormick’s 2004 sentencing, the district court concluded that

McCormick did not satisfy § 2254's in-custody requirement so as to challenge the

constitutionality of his 2001 convictions. Consequently, the court dismissed

McCormick’s amended petition for lack of jurisdiction. The court subsequently

denied McCormick’s Motion to Alter or Amend Judgment but granted a COA on

the issue of “whether or not petitioner met the ‘in custody’ requirement when he

filed this federal habeas corpus action.” (Dist. ct. order, Aug. 13, 2007, at 10.)

McCormick’s pro se appeal timely followed. We appointed appellate

counsel for McCormick on January 4, 2008, granting leave for appointed counsel

to file supplemental briefing on the in-custody issue and to request a COA on

other issues. Through his counsel, McCormick requested COAs on two issues

pertaining to his 2001 convictions: (1) whether he validly waived his right to

counsel before representing himself at trial; and (2) whether Kansas’s obstruction-

of-duty statute, Kan. Stat. Ann. § 21-3808, is unconstitutionally overbroad.

II. Discussion

“The first showing a § 2254 petitioner must make is that he is ‘in custody

pursuant to the judgment of a State court.’” Lackawanna County Dist. Attorney v.

Coss, 532 U.S. 394, 401 (2001) (quoting 28 U.S.C. § 2254(a)). The Supreme

Court has “interpreted the statutory language as requiring that the habeas

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petitioner be ‘in custody’ under the conviction or sentence under attack at the

time his petition is filed.” Maleng v. Cook, 490 U.S. 488, 490-91 (1989).

Section 2254's in-custody requirement is jurisdictional. Fleming v. Evans, 481

F.3d 1249, 1252 n.1 (10th Cir. 2007) (citing Oyler v. Allenbrand, 23 F.3d 292,

293-94 (10th Cir. 1994)).

McCormick proposes, and the district court considered and rejected, three

possible ways in which, when he filed his § 2254 petition, he was in custody

under the 2001 convictions that the petition attacks: (1) he argues that under

Kansas law, his 2004 sentence ran consecutively to his 2001 sentence, so that

pursuant to the rule of Garlotte v. Fordice, 515 U.S. 39, 40-41 (1995), he remains

in custody, for § 2254 purposes, under both sentences; (2) he argues that his

habeas petition may be construed as a challenge to the enhancement of his 2004

sentences based on his Criminal History Category, which included his 2001

convictions, and thus he may challenge the constitutionality of his 2001

convictions under the rule of Lackawanna, 532 U.S. at 404; and (3) he argues

that his term of probation for the 2001 convictions never officially commenced

nor ended, so that he remains in custody under that sentence of probation because

Kansas could force him to serve it at any time.

We consider each argument in turn, reviewing de novo the district court’s

conclusion that it lacked jurisdiction to consider McCormick’s petition. See

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Crawley v. Dinwiddie, 533 F.3d 1226, 1229 (10th Cir. 2008). We review the

district court’s factual findings for clear error. Id.

A. Whether McCormick is in custody under Garlotte

In Peyton v. Rowe, 391 U.S. 54, 64-65 (1968), the Supreme Court held that

when a habeas petitioner is in custody under consecutive state-court sentences,

reviewing courts should treat those sentences as a continuous series. Thus, for

federal habeas purposes, a prisoner serving the first of two consecutive sentences

is considered in custody under the second sentence, as well. Id.

Garlotte extended Peyton’s holding to state prisoners “seek[ing] to attack a

conviction that ran first in a consecutive series, a sentence already served.”

Garlotte, 515 U.S. at 41 (emphasis added). Reviewing courts “do not

disaggregate [the consecutive] sentences, but comprehend them as composing a

continuous stream.” Id. Provided that invalidation of the conviction underlying

the already-served sentence “would advance the date of [the prisoner’s] eligibility

for release from present incarceration,” a habeas petitioner serving the latter of

two or more consecutive sentences “remains ‘in custody’ under all of his

sentences until all are served, and . . . may attack the conviction underlying the

sentence scheduled to run first in the series.” Id. at 41, 43, 47.

McCormick posits that under Kansas law, Kan. Stat. Ann. § 21-4608(c), his

2004 sentence necessarily ran consecutively to his 2001 sentence, so that he

remains in custody, pursuant to Garlotte, for the purpose of challenging his 2001

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convictions. For the reasons that follow, we conclude that Garlotte is

inapplicable here.

1. Kan. Stat. Ann. § 21-4608(c)

The Kansas statute provides, in pertinent part, that “[a]ny person who is

convicted and sentenced for a crime committed while on probation, . . . on parole,

on conditional release or on postrelease supervision for a felony shall serve the

sentence consecutively to the term or terms under which the person was on

probation, . . . or on parole or conditional release.” Kan. Stat. Ann. § 21-4608(c).

Kansas law further provides that a convicted defendant who is released on bond

“pending review of the sentence” is considered to be on “conditional release.”

Kan. Stat. Ann. § 21-4721(b).

The Kansas Supreme Court has interpreted § 21-4608(c) to mandate that

when a defendant commits a crime while he is serving a suspended sentence for

an earlier felony, his sentence for the later crime must “run consecutively with the

sentence imposed on the prior conviction upon revocation of suspension.” State

v. Kerley, 696 P.2d 975, 977 (Kan. 1985) (citing State v. Ashley, 693 P.2d 1168

(Kan. 1985)) (emphasis added). 2 In other words, § 21-4608(c) requires not that

2
When Kerley was decided, the statutory provision was numbered
21-4608(3). Section 21-4608(c) is identical to § 21-4608(3), with the exception
that the renumbered statute was amended such that it was triggered if the
defendant committed a crime while on “assign[ment] to a community correctional
services program” or “postrelease supervision” for a prior felony, as well as if the
crime were committed while the defendant was on probation, parole, or
(continued...)

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the sentence for the later conviction be served consecutively to the term of

probation, parole, or conditional release, but rather that the later sentence be

served consecutively to the sentence imposed or reinstated after a court has

revoked probation, parole, or conditional release. 3

2. Section 21-4608(c)’s application to McCormick’s 2004
sentencing

As applied to McCormick’s case, § 21-4608(c) thus mandated that because

McCormick committed the crimes underlying his 2004 convictions during the

conditional stay of his suspended sentence for his 2001 felony marijuana

conviction, 4 his 2004 sentence was required to be run consecutively with “the

2
(...continued)
conditional release.
3
Revocation is not mandatory under Kansas law; instead, once a court has
established that a defendant violated the conditions of a suspended sentence, it
may either “‘continue or revoke the . . . suspension of sentence or nonprison
sanction.’” State v. Skolaut, 182 P.3d 1231, 1237 (Kan. 2008) (quoting Kan. Stat.
Ann. § 22-3716(b)). If the court elects to revoke the suspension of sentence, it
may then “‘require the defendant to serve the sentence imposed, or any lesser
sentence.’” Skolaut, 182 P.3d at 1237 (quoting Kan. Stat. Ann. § 22-3716(b)).
4
When imposing sentence for the 2001 convictions, the trial judge
suspended McCormick’s underlying eleven-month prison sentence and concurrent
ten-day county jail sentence, placing McCormick on probation for twelve months.
She then granted appeal bond and stayed the sentence of probation “until after the
appeal [was] decided,” conditioning the stay on McCormick’s not violating the
law. (R. vol. XV at 53-55.)

McCormick’s direct appeal was denied by the KCOA on December 20,
2002. The Kansas Supreme Court denied discretionary review of the KCOA’s
decision on March 24, 2003. Therefore, McCormick’s direct appeal was still
(continued...)

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sentence imposed on the prior conviction upon revocation of suspension,” Kerley,

696 P.2d at 977 (emphasis added). However, McCormick has not alleged–and

nothing in the record indicates–that Kansas ever actually revoked the suspension

of his 2001 prison sentence for the felony marijuana conviction and imposed or

reimposed upon him either his underlying prison term of eleven months or any

other sentence. As a result, § 21-4608(c) did not apply to McCormick’s 2004

sentencing, because there was no reimposed sentence for his 2001 conviction to

which the 2004 sentence could be attached for consecutive service.

Accordingly, the Journal Entry for the 2004 convictions left blank the space

in which the court records all “Prior Case(s) to Which the Current Sentence is to

Run concurrent or Consecutive.” (Journal Entry at 3.) While it is true that under

Kansas law, “a criminal sentence is effective when pronounced from the bench,

rather than when the journal entry of sentencing is filed,” and that “a journal

entry which imposes a sentence at variance with that pronounced from the bench

is erroneous and must be corrected to reflect the actual sentence imposed,” State

v. Scaife, 186 P.3d 755, 764 (Kan. 2008) (quotation omitted), the transcript of

McCormick’s 2004 sentencing proceeding contains no mention of any sentence to

which the 2004 sentence was to run consecutively. Both as pronounced from the

4
(...continued)
pending on February 16, 2003, when he committed the crimes underlying the
2004 convictions.

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bench and as recorded in the Journal Entry, McCormick’s 2004 sentence thus did

not run consecutively to any prior sentence.

Based on the February 16, 2003, crimes, it is certainly possible that Kansas

erred by not exercising its discretion, pursuant to Kan. Stat. Ann. § 22-3716(b), to

revoke McCormick’s suspended sentence on the 2001 convictions and require him

to serve his underlying eleven-month prison term or some other reinstated

sentence. It is similarly possible that the state court erred when it did not check

the appropriate boxes on the Journal Entry form to indicate that the crimes

underlying McCormick’s 2004 convictions were committed while he was either

“on Probation, Parole, etc., for a Felony” or “on Felony Bond.” (Journal Entry at

2.) Even if Kansas did commit such errors under state law, however–and even if

such errors, if corrected, would have meant that § 21-4608(c) did apply to

McCormick’s 2004 sentencing–it is simply not our province “to reexamine state-

court determinations on state-law questions,” Estelle v. McGuire, 502 U.S. 62, 68

(1991). “Such an inquiry . . . is no part of a federal court’s habeas review of a

state conviction . . . , [because] ‘federal habeas corpus relief does not lie for

errors of state law.’” Id. at 67 (quoting Lewis v. Jeffers, 497 U.S. 764, 780

(1990)); see also Thomas v. Gibson, 218 F.3d 1213, 1222 (10th Cir. 2000)

(“[Section] 2254 exists to correct violations of the United States Constitution, not

errors of state law.”); Miller v. Crouse, 346 F.2d 301, 304 (10th Cir. 1965)

(“[T]he writ of habeas corpus cannot be used as a substitute for an appeal[,] and

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alleged errors in a state court proceeding in exercise of jurisdiction over a case

properly before it cannot be reviewed by federal habeas corpus unless there has

been a deprivation of constitutional rights such as to render a judgment void or to

amount to a denial of due process.”).

McCormick did not challenge in state court his 2004 sentencing

proceedings, nor the Journal Entry that recorded the outcome of those

proceedings. 5 He may not now use his § 2254 petition “as a substitute for an

appeal,” Miller, 346 F.2d at 304, in the Kansas courts.

We conclude that McCormick is not in custody under the rule of Garlotte.

B. Whether McCormick is in custody under Lackawanna

In Lackawanna County District Attorney v. Coss, 532 U.S. at 394, the

Supreme Court refined the rule of Maleng, 490 U.S. at 488. Maleng held that a

habeas petitioner does not remain in custody “under a conviction after the

sentence imposed for it has fully expired, merely because” that prior conviction

could be or actually was used “to enhance the sentences imposed for any

subsequent crimes of which he is convicted.” Maleng, 490 U.S. at 492.

However, if a petition putatively challenging an earlier conviction for which the

petitioner is no longer in custody “can be read as asserting a challenge to” a later

5
If Kansas did, indeed, err by not revoking the suspension of McCormick’s
2001 sentence and requiring him to serve his underlying eleven-month prison
term or some other term of imprisonment, that error ultimately worked in his
favor, reducing the time he would have spent in prison under consecutive
sentences.

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sentence on which he remains in custody, on the ground that the later sentence

was “enhanced by the allegedly invalid prior conviction,” the petitioner “has

satisfied the ‘in custody’ requirement for federal habeas jurisdiction.” Id. at 493-

94. Maleng left undecided the question whether “the [earlier] conviction itself

may be subject to challenge in the attack upon the [later] sentences which it was

used to enhance.” Id. at 494.

The Court answered that question in the negative in Lackawanna, holding

that “once a state conviction is no longer open to direct or collateral attack in its

own right,” a habeas petitioner “generally may not challenge,” on the ground that

the expired conviction was unconstitutionally obtained, a later sentence that was

enhanced by that expired conviction. Lackawanna, 532 U.S. at 403-04. The

Lackawanna Court crafted an exception to this general rule, however, for Ҥ 2254

petitions that challenge an enhanced sentence on the basis that the prior

conviction used to enhance the sentence was obtained where there was a failure to

appoint counsel in violation of the Sixth Amendment, as set forth in Gideon v.

Wainwright, 372 U.S. 335 (1963).” Lackawanna, 532 U.S. at 404 (additional

citation omitted). A plurality of the Court went on to recognize a second

exception to the general rule: cases in which a petitioner has, through no fault of

his own, no means of obtaining “timely review of a constitutional claim.” Id. at

405. We have recognized the plurality’s second exception as good law. See

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

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 Crucial to the Lackawanna exceptions is the requirement that “[a]s with any

§ 2254 petition,” a petitioner seeking to invoke the exceptions “must satisfy the

procedural prerequisites for relief[,] including, for example, exhaustion of

remedies.” Lackawanna, 532 U.S. at 404. Exhaustion is a doctrine of comity and

federalism “dictat[ing] that state courts must have the first opportunity to decide a

[habeas] petitioner’s claims.” Rhines, 544 U.S. at 273. “[I]t would be unseemly

in our dual system of government for a federal district court to upset a state court

conviction without an opportunity to the state courts to correct a constitutional

violation . . . .” Id. at 274 (quotation omitted). In sum, the “substance of a

habeas petitioner’s federal claims must be fairly presented to the state courts

before they can be raised in federal court, and petitioner bears the burden of

demonstrating that he has exhausted his available state remedies.” Oyler, 23 F.3d

at 300 (citations omitted); see also Sup. Ct. R. 20.4(a); Caver v. Straub, 349 F.3d

340, 345 (6th Cir. 2003). 6

Before we may reach the merits of McCormick’s claim to the Lackawanna

exceptions, then, there are two threshold requirements that must be met. First, we

must be able to construe the petition–which lists McCormick’s 2001 convictions

as the judgment of conviction under attack–as a challenge to his 2004 sentence as

6
Even if it were not Petitioner’s burden to demonstrate exhaustion of state
remedies, the district court’s opinion clearly determined that state remedies were
not exhausted, and we can not say that finding was clearly erroneous. (See dist.
ct. order, July 6, 2007, at 8.)

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enhanced by the 2001 convictions. Second, McCormick must demonstrate that he

has “fairly presented to the state courts,” Oyler, 23 F.3d at 300, that challenge to

the enhancement of his 2004 sentence.

1. Whether we may construe the petition as a challenge to the
2004 sentence as enhanced by the 2001 convictions

McCormick’s amended habeas petition refers to his 2004 sentence only

once, in a brief footnote asserting that because the 2001 convictions were “used to

‘enhance’” the 2004 sentence, “this petition is filed in part to attack that

‘enhancement.’” (Amended § 2254 pet. (2001 convictions) at 13*.) While this

notation is perfunctory at best, we think that, “construed with the deference to

which pro se litigants are entitled,” it may fairly be read as “asserting a challenge

to the [later] sentence[], as enhanced by the allegedly invalid prior conviction,”

Maleng, 490 U.S. at 493 (citing Haines v. Kerner, 404 U.S. 519 (1972)

(additional citation omitted)).

2. Whether McCormick has exhausted his state remedies as to the
2004 sentence

On direct appeal of his 2004 convictions, McCormick challenged “the

district court’s refusal to appoint substitute counsel; the admission of evidence

seized in violation of the Fourth Amendment; the admission of prejudicial

photographs; the denial of the defendant’s request for a psychological evaluation

of the victim; and the court’s jury instructions on aggravated kidnapping and

aggravated burglary.” McCormick, 159 P.3d at 199. He “further contend[ed] the

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prosecution prejudiced his ability to obtain a fair trial by withholding exculpatory

evidence and committing multiple instances of misconduct.” Id.

McCormick’s appeal in the Kansas courts thus did not challenge his 2004

sentence, nor, more particularly, that sentence’s enhancement by the effect of his

2001 convictions on the calculation of his Criminal History Category–a

calculation to which he also did not object during the 2004 sentencing

proceeding. Neither has McCormick demonstrated any other means by which he

“fairly presented to the state courts,” Oyler, 23 F.3d at 300, such a challenge.

Therefore, we conclude that he has not satisfied § 2254's and Lackawanna’s

“procedural prerequisite[] . . . [of] exhaustion of remedies,” 532 U.S. at 404.

Because McCormick has not met the threshold prerequisites for a

Lackawanna claim, we need not and do not reach the merits of his argument that

he is in custody pursuant to one of the Lackawanna exceptions.

C. Whether McCormick is in custody because he has not yet served his
2001 sentence of probation

Nothing in the record “clearly establishes “when or even if . . .

McCormick’s 2001 probation term commenced or terminated.” (Dist. ct. order,

July 6, 2007, at 6 (footnote omitted).) However, based on “pertinent state court

records and simple logic,” the district court found that McCormick’s probationary

period for the 2001 convictions expired no later than March 25, 2004. (Id. at 6 &

nn. 6, 7.)

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 The district court first found that because the stay of McCormick’s sentence

of probation was coextensive with his direct appeal, that stay expired no later

than March 25, 2003, the day after the Kansas Supreme Court denied

discretionary review of the appeal. Concluding that McCormick’s twelve-month

“probationary term” began to run upon expiration of the stay, the district court

next found that that probationary term came to an end no later than March 25,

2004. The probationary term thus terminated several years before McCormick

filed the habeas petition at issue here; and Kansas law dictates that the State may

revoke a defendant’s probation only during the probationary term, see Kan. Stat.

Ann. § 22-3716(a); State v. Grimsley, 808 P.2d 1387, 1389-90 (Kan. Ct. App.

1991). Based on these findings and conclusions, the district court decided that

McCormick’s 2001 sentence was satisfied prior to his filing of this habeas action,

so that he was no longer in custody under the 2001 convictions when the petition

was filed. See Maleng, 490 U.S. at 490-91.

In light of Kansas law on the issue of stayed terms of probation, we agree.

In State v. Baumfalk, No. 94,750, 2006 WL 2043165, at *1 (Kan. Ct. App. July

21, 2006) (unpublished), the defendant was convicted and sentenced to a six-

month term of probation, but the trial judge stayed execution of the sentence until

the court could rule upon any post-trial motions that might be filed. Under state

law, such motions had to be filed within ten days of judgment. Id. When no

motions were filed within the ten-day period, the State did not immediately

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proceed to execute the sentence, but instead delayed entry of sentencing for

almost a month. Id. On appeal, the KCOA held that despite the State’s delay in

formally executing the sentence, the defendant’s period of probation commenced

immediately upon expiration of the stay (i.e., when no motions were filed within

the ten-day period). Id. The court explained that a “judgment in a criminal case,

whether it imposes a fine, grants probation, suspends either probation or sentence,

or imposes any combination of these alternatives, is effective upon its

pronouncement from the bench.” Id. (citing State v. Jackson, 936 P.2d 761 (Kan.

1997)). When the pronouncement from the bench is a sentence of probation that

is stayed for a specific period, the probationary term thus begins to run

immediately upon expiration of the stay.

Under Kansas law, the district court thus was correct in concluding that

McCormick’s twelve-month probationary period began to run no later than March

25, 2003, the day after the Kansas Supreme Court denied discretionary review of

his direct appeal. It likewise was correct in finding that McCormick’s

probationary period under the 2001 convictions–and thus the period within which

Kansas could have revoked his probation for those convictions–concluded no later

than March 25, 2004, roughly two years before he filed his habeas petition.

Accordingly, we conclude that McCormick is not in custody pursuant to his

2001 sentence of probation.

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III. Conclusion

Based on the foregoing, we hold that McCormick was not in custody, when

he brought the instant § 2254 action, on either his 2001 convictions or his 2004

sentence as enhanced by those convictions. As a result, the district court lacked

jurisdiction to consider his petition for habeas relief.

We therefore AFFIRM the district court’s orders dismissing McCormick’s

petition for lack of jurisdiction and denying his motion for reconsideration.

Because we lack jurisdiction over McCormick’s petition, his application for COA

on the additional issues is DENIED as moot.

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