                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES COURT OF APPEALS                April 2, 2013
                                                                Elisabeth A. Shumaker
                                    TENTH CIRCUIT                   Clerk of Court



 THOMAS EARL FAINE,

          Petitioner - Appellant,
                                                        No. 12-6172
 v.                                              (D.C. No. 5:11-CV-01470-C)
                                                        (W.D. Okla.)
 JUSTIN JONES, DIRECTOR,

          Respondent - Appellee.



                         ORDER DENYING CERTIFICATE
                             OF APPEALABILITY *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


      Proceeding pro se, 1 Thomas Earl Faine—a prisoner in the State of

Oklahoma’s custody—seeks a certificate of appealability (“COA”) to appeal from

the district court’s denial of his petition for habeas corpus under 28 U.S.C.

§ 2241. Additionally, Mr. Faine has renewed his motion, that the district court

previously denied, to proceed on appeal in forma pauperis (“IFP”). Having

      *
              This order is not binding precedent except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.
      1
             Because Mr. Faine is proceeding pro se, we construe his filings
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v.
Davis, 596 F.3d 1198, 1201 n. 2 (10th Cir. 2010).
thoroughly reviewed the relevant law and the record, we deny Mr. Faine’s request

for a COA, deny Mr. Faine’s request to proceed IFP, and dismiss this matter.

                                            I

      In 1987, Mr. Faine was sentenced to sixty years’ imprisonment for armed

robbery. Ten years later, “the Oklahoma legislature enacted the Truth in

Sentencing Act.” Powell v. Ray, 301 F.3d 1200, 1202 (10th Cir. 2002). The Act

“increased the length of time between parole consideration hearings for those

convicted of violent crimes from every twelve months to every three years.”

Jackson v. Standifird, 463 F. App’x 736, 737 (10th Cir. 2012); see Okla. Stat.

Ann. tit. 57, § 332.7.

      Mr. Faine filed the instant petition in the district court on December 12,

2011, asserting that the 1997 amendments and their application to his sentence

violated the Ex Post Facto Clause of the United States Constitution. 2 The district


      2
              We pause to highlight that Mr. Faine’s petition is in fact properly
viewed as one brought under § 2241 because he is attacking the execution of his
sentence. That is, he is contesting the purported adverse effect that the 1997
amendments to Oklahoma’s parole review procedures has had on the duration of
his confinement. Specifically, he is asserting that these statutory changes delayed
any potential early release that would have otherwise been available to him based
on his original sentence. As we have previously explained, “[a] petition under
. . . § 2241 attacks the execution of a sentence rather than its validity.” Licon v.
Ledezma, 638 F.3d 1303, 1311 (10th Cir. 2011) (quoting Bradshaw v. Story, 86
F.3d 164, 166 (10th Cir. 1996)) (internal quotation marks omitted). And thus
where a petitioner “attacks the execution of his sentence as it affects the fact or
duration of his confinement[,] . . . [s]uch an attack, . . . seems to fit . . . under the
rubric of § 2241.” Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000).
                                                                            (continued...)

                                           -2-
court ordered a response from the Oklahoma Attorney General. Instead, the

General Counsel’s office of the Oklahoma Department of Corrections (“ODC”)

responded on behalf of Respondent Justin Jones, the ODC’s Director. Director

Jones’s response came in the form of a motion to dismiss Mr. Faine’s petition.

The district court subsequently granted Director Jones’s motion to dismiss,

finding that: (1) it was “undisputed that [Mr. Faine] ha[d] not pursued any state

judicial remedy to challenge the application of these laws to him,” R. at 100

(Order, filed June 22, 2012), and (2) Mr. Faine “failed to file his petition within

the statutory [limitations] period” that “expired no later than December 2002,” id.

at 101. The district court then entered an order denying Mr. Faine a COA and

also denying his motion to proceed on appeal IFP.

                                          II

      Mr. Faine now seeks a COA from our court. As most pertinent to this

claim for relief, Mr. Faine argues that: (1) “[t]he Attorney General’s Office failed

to properly seek the courts [sic] permission to withdraw . . . [and] to allow for

[the] General Counsel’s Office to make a proper entry of appearance, [and]

therefore defaulted these proceedings at the onset,” Aplt. Opening Br. at 5; see id.



      2
        (...continued)
Notwithstanding Mr. Faine’s conclusory assertions to the contrary, there is no
suggestion in the record that the district court misunderstood these principles and,
more specifically, that it “misconstrued [Mr. Faine’s] complaint as an attack on
his [c]onviction or the validity of the conviction.” Aplt. Opening Br. at 3.

                                         -3-
at 5–7; (2) the district court “erred in its [r]ecitation or understanding [of] the

facts” because he had exhausted his claims through the administrative process and

exhaustion in state court would have been futile, id. at 7–9; and (3) the district

court erred or abused its discretion by not recognizing the unconstitutionality of

the 1997 amendments, see id. at 10–13.

                                           A

      “[A] state prisoner must obtain a COA to appeal the denial of a habeas

petition, whether such petition was filed pursuant to § 2254 or § 2241, whenever

the detention complained of . . . arises out of process issued by a State court.”

Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005) (quoting Montez, 208 F.3d

at 867) (internal quotation marks omitted); see 28 U.S.C. § 2253(c)(1)(A); Miller-

El v. Cockrell, 537 U.S. 322, 335–36 (2003). We will not issue a COA unless

“the applicant has made a substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2); accord Harris v. Dinwiddie, 642 F.3d 902, 906

(10th Cir. 2011). An applicant makes such a showing by “demonstrat[ing] ‘that

reasonable jurists could debate whether (or, for that matter, agree that) the

petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.’” Harris,

642 F.3d at 906 (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

      When the district court denies an application on procedural grounds, “the

applicant faces a double hurdle.” Coppage v. McKune, 534 F.3d 1279, 1281 (10th

                                           -4-
Cir. 2008). To succeed in such a situation, “the applicant [must] make a

substantial showing of the denial of a constitutional right, [and] he must also

show ‘that jurists of reason would find it debatable . . . whether the district court

was correct in its procedural ruling.’” Id. (quoting Slack, 529 U.S. at 484). Yet,

in the instance of a procedural bar, the Supreme Court has recognized that where

“the district court is correct to invoke [a procedural bar] to dispose of the case, a

reasonable jurist could not conclude either that the district court erred in

dismissing the petition or that the petitioner should be allowed to proceed

further.” Slack, 529 U.S. at 484; see Davis, 425 F.3d at 834.

                                           B

      We have carefully reviewed Mr. Faine’s petition, the district court’s order,

and the record before us under the COA framework that the Supreme Court has

established, most notably in Miller-El and Slack. Based upon this review, we

conclude that Mr. Faine is not entitled to a COA on any of his claims. In

particular, we highlight a few points. First, Mr. Faine has not shown that the

district court was incorrect in finding that his claims were unexhausted in state

court. His conclusory assertions that a petition under Oklahoma’s habeas statute

would have been futile and that the statute is not an adequate state remedy are not

enough. 3 Nor has Mr. Faine shown that the court erred in finding that his petition


      3
             Indeed, the Oklahoma habeas statute on its face seemingly would
                                                                    (continued...)

                                          -5-
was time-barred. In other words, he has not shown that “jurists of reason would

find it debatable . . . whether the district court was correct in its procedural

ruling[s].” Coppage, 534 F.3d at 1281 (quoting Slack, 529 U.S. at 484) (internal

quotation marks omitted). Therefore, without meaningfully calling into question

the district court’s exhaustion and limitations rulings, Mr. Faine has not even

begun to carry his burden to attain COA relief.

      Furthermore, we are not convinced by Mr. Faine’s contention that the

district court erred by allowing the General Counsel’s office of the ODC to

respond on behalf of Director Jones, when the district court had directed the

Oklahoma Attorney General to respond. Mr. Faine has done virtually nothing to

advance his cause, and we are hard-pressed on this record to conclude that the

district court erred in allowing the General Counsel’s office to respond on behalf

of Director Jones and to serve as his counsel. Notably, Mr. Faine points to no

authority that gives him the right or power to enforce the district court’s order

seeking a response from the Attorney General, nor any authority that gives him



      3
        (...continued)
have provided a potential avenue for relief for Mr. Faine: “Every person
restrained of his liberty, under any pretense whatever, may prosecute a writ of
habeas corpus to inquire into the cause of the restraint, and shall be delivered
therefrom when illegal.” Okla. Stat. tit. 12, § 1331; cf. Crank v. Jenks, 224 F.
App’x 838, 839 (10th Cir. 2007) (concluding that a petitioner challenging the
constitutionality of Oklahoma’s Truth in Sentencing Act similarly failed to
exhaust his state court remedies and that he could have filed a habeas petition
pursuant to section 1331).

                                          -6-
the right or power to challenge Director Jones’s choice of counsel. Moreover,

Director Jones’s attorney (i.e., the General Counsel’s office) properly entered an

appearance and then undertook (consistent with the substance of the district

court’s order) to respond on behalf of Director Jones. There is no indication that

the district court viewed this as improper or that it sought to enforce its own order

with regard to the precise identity of the counsel responding on behalf of Director

Jones. In short, we conclude that Mr. Faine utterly failed to establish his claim of

procedural error relating to the representation of the General Counsel’s office.

Accordingly, there is no possible basis for COA relief on this contention.

      Finally, as for Mr. Faine’s motion to proceed IFP, we agree with the district

court that he has not demonstrated “the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.” Watkins

v. Leyba, 543 F.3d 624, 627 (10th Cir. 2008) (quoting McIntosh v. U.S. Parole

Comm’n, 115 F.3d 809, 812 (10th Cir. 1997)) (internal quotation marks omitted).

Consequently, a grant of IFP relief would be inappropriate.




                                         -7-
                                       III

      For the foregoing reasons, we deny Mr. Faine’s request for a COA, deny

his motion to proceed IFP, and dismiss this matter.



                                             Entered for the Court


                                             JEROME A. HOLMES
                                             Circuit Judge




                                       -8-
