Gerald Cooper Spybuck, Jr., Petitioner-appellant, v. Ron Champion; Attorney General of the State of Oklahoma,respondents-appellees, 61 F.3d 916 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

ANDERSON

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This cause is therefore ordered submitted without oral argument.

This matter is before the court on appellant's application for a certificate of probable cause.

The district court dismissed the appellant's petition for a writ of habeas corpus on the ground that the appellant failed to satisfy the "in custody" jurisdictional requirement of 28 U.S.C. 2241(c) (3) and 2254(a). See Maleng v. Cook, 490 U.S. 488 (1989); Gamble v. Parsons, 898 F.2d 117, 117-18 (10th Cir. 1990). The appellant argued below and, among other things, asserts here that the collateral consequences doctrine satisfies the "in custody" requirement.

We have reviewed the record and the helpful briefs of the parties, and, for the reasons stated in the magistrate judge's Findings and Recommendation dated February 13, 1995, subsequently adopted by the district court, conclude that the district court did not err.

The appellant has failed to make a substantial showing of the denial of a federal right necessary for the issuance of a certificate of probable cause under 28 U.S.C. 2253. See Barefoot v. Estelle, 463 U.S. 880 (1983).

It is, therefore, ordered as follows:

1. Appellant's application for a certificate of probable cause is DENIED;

3. The mandate shall issue forthwith.