govinfo:USCOURTS-okwd-5_25-cv-01311-1

IN THE UNITED STATES DISTRICT COURT FOR THE 
WESTERN DISTRICT OF OKLAHOMA 
 
JARROD R.L. ROBERSON, 
 
 Petitioner, 
 
-vs- 
 
JOSHUA CULTERA, 
 
 Respondent. 
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) NO. CIV-25-1311-HE 
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ORDER 
 On May 8, 2026, United States Magistra te Judge Amanda L. Maxfield issued a 
Report and Recommendation [Doc. #18], recommending petitioner’s amended petition for 
a writ of habeas corpus under 28 U.S.C. § 2254 be dismissed with prejudice. She advised 
petitioner of his right to file an objection to the Report and Recommendation on or before 
May 29, 2026, and specifically advised him of the consequences for failure to file a timely 
objection. Petitioner has not filed an objection to the Report and Recommendation.1 
 Initially, the magistrate judge recommende d the court should conclude petitioner is 
not presently “in custody” under his 2003 conviction and cannot challenge it in the instant 
petition. Section 2254 of Title 28 of the United States Code requires a petitioner for a writ 
of habeas corpus be “in custody pursuant to the judgment of a State court . . . in violation 
of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). A federal 
district court lacks subject matter jurisdic tion to consider a § 2254 petition unless the 
 
1 The record reflects the Report and Recommendation was returned undeliverable [Doc. #19]. 

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petitioner is “in custody” under the conviction or sentence un der attack at the time his 
petition is filed. Neiberger v. R udek, 450 Fed. Ap px. 719, 723 (10 th Cir. 2011) 
(unpublished). Because petitione r has not demonstrated he is “in custody” and as his 
petition does not appear to fall within the li mited circumstances discussed in Neiberger, 
450 Fed. Appx. at 724, the court concludes that it lacks subject matter jurisdiction over the 
§ 2254 amended petition, and it will be dismissed.2 
Rule 11(a) of the Rules Governing Section 2254 Cases in the United States Courts 
requires the court to issue or deny a certificate of appealability (COA) when it enters a final 
order adverse to a petitioner. “When a district court denies a habeas petition on procedural 
grounds without reaching the prisoner’s underl ying constitutional claim, a COA should 
issue when the prisoner shows, at least, th at jurists of reason would find it debatable 
whether the petition states a valid claim of th e denial of the constitu tional right and that 
jurists of reason would find it debatable whet her the district court was correct in its 
procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 48 4 (2000). Here, the court 
concludes that petitioner cannot make the required showing. A certificate of appealability 
will therefore be denied. 
 Accordingly, the court ADOPTS the Report and Recommendation [Doc. #18] to 
the extent indicated. The petition ]Doc. #8] is DISMISSED WITHOUT PREJUDICE 
for lack of subject matter jurisdiction. The court DENIES a certificate of appealability. 
 
2 The magistrate judge alternatively has recommended the § 2254 amended petition is subject to 
dismissal as untimely. For the reasons stated by the magistrate judge, dismissal based on 
timeliness would likely apply if the court had subject-matter jurisdiction to address it. However, 
as the court lacks subject-matter jurisdiction, it is unnecessary to address the issue. 

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A separate judgment will be entered. 
 IT IS SO ORDERED. 
Dated this 15th day of May, 2026. 
 
 

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