                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                     September 22, 2006
                                     TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                         Clerk of Court

 ROLAND D. FOSTER,

          Petitioner - A ppellant,
                                                         No. 06-6148
 v.                                               (D.C. No. 05-CV–01443-C )
                                                         (W .D. Okla.)
 RANDALL G. W ORKM AN, W arden,

          Respondent - Appellee.



                                ORDER
                 DENYING CERTIFICATE O F APPEALABILITY


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.


      Roland D. Foster, a state inmate appearing pro se, seeks a certificate of

appealability (COA) so that he may appeal the district court’s denial of his habeas

petition filed pursuant to 28 U.S.C. § 2241. 1 Because M r. Foster has failed to

demonstrate that it is reasonably debatable whether the district court’s procedural

ruling dismissing his claim was correct, see Slack v. M cDaniel, 529 U.S. 473, 484


      1
              M r. Foster, on his form Petition, characterized his action as a motion
seeking a reduction or correction of his sentence pursuant to Rule 35 of the
Federal Rules of Criminal Procedure. Rule 35, however, cannot provide a
jurisdictional basis for M r. Foster’s action because he is not currently serving a
federal sentence. Accordingly, because M r. Foster’s action challenges the
execution of his state sentence, the district court construed his action as a Petition
for W rit of Habeas Corpus pursuant to 28 U.S.C. § 2241, and we do as well. See
M ontez v. M cKinna, 208 F.3d 862, 868-69 (10th Cir. 2000).
(2000), we deny a COA and dismiss the appeal.

      In 1986, M r. Foster was convicted in the state district court of five felony

offenses and was ordered to serve five consecutive sentences. R. Doc. 1. M r.

Foster is currently incarcerated in an Oklahoma D epartment of Corrections

(“ODOC”) facility serving a 20 year sentence for forcible sodomy. R. Doc. 8, Ex.

1. On June 25, 2002, M r. Foster was terminated from a prison job with Oklahoma

Correctional Industries (“OCI”) for “[p]laying video games on [a] computer.” Id.,

Ex. 2. Following M r. Foster’s job termination, both the facility/classification

comm ittee and the deputy warden at the facility where M r. Foster was

incarcerated approved his reassignment to the general labor pool. Id.

      On September 30, 2002, M r. Foster filed a “Request to Staff” asking that he

be reinstated to his prison job at OCI. Id., Ex. 3. The warden at the facility in

which he is incarcerated denied M r. Foster’s request on October 2, 2002. Id. M r.

Foster was subsequently assigned to a new prison job as a vo-tech worker. Id. at

Ex. 4. In the interim between his reassignment and the present action, M r. Foster

has filed four additional Request to Staff forms seeking to be rehired by OCI, all

of which have been denied. R. Doc. 11 at 2. In June 2005, M r. Foster filed a

grievance in which he sought to be reinstated to his prior job at OCI “retroactive

to 6/25/02.” R. Doc. 1 Attch. D. He also sought to be given Ekstrand 2 credits for

      2
        In Ekstrand v. Oklahoma, 791 P.2d 92 (Okla. Crim. App. 1990) abrogated
on other grounds by W aldon v. Evans, 861 P.2d 311 (Okla. Crim. App. 1993), the
Oklahoma Court of Criminal Appeals held that the 1988 amendments to

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the period between June 25, 2002 and the date on which he filed his grievance.

Id. The warden denied M r. Foster’s grievance, explaining that “M r. Tomlinson,

the administrator of OCI, has made the determination that he does not want to

rehire you at this time . . . .” Id.

       On December 13, 2005, M r. Foster filed his federal habeas petition. R.

Doc. 1. In it, he asserts that he is being denied the early release Ekstrand credits

he is entitled to. See id. He further alleges that he is not receiving “a right”

granted to others and therefore is being discriminated against, and that both the

administrator of OCI and the W arden failed to follow established policies and

procedures in his case. See id. He raises similar claims on appeal, and also

argues that delays in filing his petition were due to no fault of his own.

       On M arch 17, 2006, the assigned magistrate judge recommended that M r.

Foster’s action be time-barred by the one-year limitations period contained within


Oklahoma’s earned credit statute operated in an unconstitutional ex post facto
manner as applied to prisoners who had been sentenced prior to the amendments’
effective date. Id. at 95. As a result, an ODOC policy provides that, “[a]n inmate
is entitled to earned credit as it existed under the law during the period beginning
September 8, 1976, and ending October 31, 1988, on sentences in which the crime
was committed prior to November 1, 1988” if the inmate “would earn more credit
under the old earned [credit] system than under the class level system [adopted in
1988] . . . .” See Okla. Dep’t of Corr., Policy and Operations M anual § 6 (2004),
available at http://www.doc.state.ok.us/Offtech/op060211.htm. Pursuant to the
credit system in place at the time M r. Foster was sentenced, an inmate w as to earn
two days deduction from his sentence for each day in which he was assigned to
Oklahoma State Industries (now OCI), private prison industries, agricultural
production, or vo-tech training. See id. It is these deductions that M r. Foster
apparently sought in his filed grievance and that he now seeks in his habeas
petition.

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28 U.S.C. § 2244(d)(1)(D). R. Doc. 11 at 5. M r. Foster objected on the grounds

that he is entitled to equitable tolling because of prison officials’ delay in

responding to staff requests. Accepting the magistrate judge’s recommendation

over M r. Foster, the district court, without addressing M r. Foster’s substantive

claims, dismissed his habeas petition as untimely on April 13, 2006. R. Doc. 13

at 1-2.

          W hen the district court denies a habeas petition on purely procedural

grounds and thereby fails to address a prisoner’s substantive claims, a COA may

issue only if the prisoner demonstrates that it is reasonably debatable whether (1)

the petition states a valid claim of the denial of a constitutional right, and (2) the

district court’s procedural ruling is correct. Slack, 529 U.S. at 484. On appeal,

M r. Foster argues both the merits of his claim and that the district court erred in

dismissing his petition as untimely. The district court’s determination that M r.

Foster’s petition is time-barred, however, is not reasonably debatable.

          The Antiterrorism and Effective Death Penalty Act (AEDPA ), enacted on

April 24, 1996, provides that a “1-year period of limitation shall apply to an

application for a writ of habeas corpus by a person in custody pursuant to the

judgment of a State court.” 28 U.S.C. § 2244(d)(1). Although M r. Foster is not

challenging the state court judgment pursuant to which he is incarcerated, we

have previously held that § 2244(d)(1)’s one-year limitation period also applies to

habeas petitions contesting administrative decisions. See Dulworth v. Evans, 442

                                            -4-
F.3d 1265, 1268 (10th Cir. 2006). In this case, the limitations period for M r.

Foster’s petition began to run on “the date on which the factual predicate of the

claim or claims presented could have been discovered through the exercise of due

diligence.” 28 U.S.C. § 2244(d)(1)(D).

      At the very latest, M r. Foster became aware that he would not be reinstated

to his prison job at OCI, and therefore would not be receiving the “2 for 1” early

release credits attached to an OCI job, on October 2, 2002, when the warden

denied his original request for reinstatement. M r. Foster therefore had until

October 2, 2003 to file his § 2241 petition. He did not file his § 2241 petition,

however, until December 13, 2005, well past the deadline.

      M r. Foster argues that the delay in filing his habeas petition was through no

fault of his own because various state officials refused to answer his requests.

This argument is unavailing, however, because the evidence clearly demonstrates

that M r. Foster’s various requests for reinstatement to an OCI job and his

grievance were timely rejected by ODOC staff.

      M r. Foster also argues that he was first required to exhaust administrative

remedies before filing his habeas petition and that he did not finish doing so until

until he received the final administrative appeal decision on August 2, 2005. H e

argues the limitation period only began running on that date. W hile M r. Foster is

quite correct that we have previously held that “§ 2244(d)(1)(D)’s one-year

limitation period does not commence until the decision rejecting [an inmate’s]

                                         -5-
administrative appeal becomes final,” a prerequisite is that “a petitioner timely

and diligently exhaust[ ] his administrative remedies.” See Dulworth, 442 F.3d at

1268. Here, over two and a half years lapsed between the denial of M r. Foster’s

original request for reinstatement to an OCI job and the filing of his grievance.

M oreover, as previously mentioned, the evidence does not support M r. Foster’s

contention that state officials’ actions delayed the exhaustion of his

administrative remedies or the filing of his habeas petition. Because M r. Foster

did not timely and diligently exhaust his administrative remedies, October 2, 2003

is the appropriate date by which to judge the timeliness of his habeas petition.

      The limitations period for § 2241 motions is also subject to equitable

tolling in extraordinary circumstances. M iller v. M arr, 141 F.3d 976, 978 (10th

Cir. 1998). Generally, equitable tolling occurs in “circumstances where the

limitation period at least raises serious constitutional questions and possibly

renders the habeas remedy inadequate and ineffective.” Id. M r. Foster, however,

has failed to demonstrate that such circumstances exist in this case.

      Accordingly, we DENY a COA, and DISM ISS this appeal.


                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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