UNITEDSTATES COURT OF APPEALS

TENTH CIRCUIT

ANDREW S. MAVROVICH,

Petitioner - Appellant,

v.

STATE OF KANSAS; ATTORNEYGENERAL OF THE STATE OFKANSAS,

Respondents - Appellees.No. 02-3323D.C. No. 99-CV-3274-DES (D. Kansas)ORDER AND JUDGMENT

Before EBEL, HENRY, and HARTZ, CircuitJudges.

After examining the briefs and appellate record, this panel has determinedunanimously that oral argument would not materially assist the determination ofthis appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case istherefore ordered submitted without oral argument. This order and judgment isnot binding precedent, except under the doctrines of law of the case, res judicata,and collateral estoppel. The court generally disfavors the citation of orders andjudgments; nevertheless, an order and judgment may be cited under the terms andconditions of 10th Cir. R. 36.3.

On August 16, 1999, Petitioner pro se Andrew Mavrovich filed anapplication for a writ of habeas corpus in federal district court, under 28 U.S.C.§ 2254. The district court considered the merits of Petitioner's claims indetermining that he was not entitled to habeas relief. Petitioner now appeals thedistrict court's dismissal of his application. We hold that Petitioner's applicationdoes not satisfy the jurisdictional requirements for § 2254 actions. We thereforevacate the district court's judgment and remand this case to the district court withinstructions to dismiss the application for lack of jurisdiction.

Section 2254 grants federal court jurisdiction over an application for a writof habeas corpus only when the applicant is "in custody pursuant to the judgmentof a State court." 28 U.S.C. § 2254(a) (emphasis added); see also 28 U.S.C.§ 2241(c)(3). "[W]hile the concept of 'in custody' does not require that thepetitioner be physically confined and extends beyond incarceration to parole onan unexpired sentence, it does not extend to the 'situation where a habeaspetitioner suffers no present restraint from a challenged conviction' at the time ofthe filing of the habeas petition." Harvey v. Shillinger, 76 F.3d 1528, 1537 (10thCir. 1996), quoting Maleng v. Cook, 490 U.S. 488, 491-92 (1989).

"[E]very federal appellate court has a special obligation to satisfy itself notonly of its own jurisdiction, but also that of the lower courts in a cause underreview . . . ." Bender v. Williamsport Area School Dist., 475 U.S. 534, 541 (1986) (internal quotation marks omitted). In an effort to determine whether thedistrict court had jurisdiction over Petitioner's application, we entered an orderon January 28, 2003, observing that Petitioner did not appear to have been "incustody on the conviction being challenged in this case when he filed his petitionfor habeas corpus under 28 U.S.C. § 2254 in the district court." We directedPetitioner to explain "whether he was incarcerated, on parole, on probation, orhad his liberty restrained in any way by the state as a result of this conviction."

In response, Petitioner filed a document stating that he was on parole untilNovember 11, 1998. Petitioner seems to assume that all he needs to establish isthat he was "in custody" at the time he initiated challenges to his sentence instate court. For example, he points out that he filed a challenge in state court inMarch 1997. The relevant jurisdictional inquiry, however, is not whetherPetitioner began proceedings in state court while his liberty was restrained. Rather, the question is whether he filed his federal habeas application while hisliberty was restrained. Because Petitioner's parole ended in November 1998, hewas not "in custody" when he filed his § 2254 application in August 1999.

We therefore vacate the district court's judgment and remand this casetothe district court with instructions to dismiss the application for lack ofjurisdiction.

Entered for the Court

Harris L Hartz

Circuit Judge