                        UNITED STATES COURT OF APPEALS
                                 TENTH CIRCUIT
                         Byron White United States Courthouse
                                  1823 Stout Street
                               Denver, Colorado 80257
                                   (303) 844-3157
Elisabeth A. Shumaker                                              Douglas E. Cressler
       Clerk                                                       Chief Deputy Clerk



                                     January 25, 2006


      TO: ALL RECIPIENTS OF THE ORDER DENYING A CERTIFICATE OF
          APPEALABILITY

      RE: 05-6185, Berry v. Oklahoma
          Filed January 18, 2006

            The last sentence of this order should read, “We DENY Mr. Berry’s
      application for a COA and DISMISS the appeal.” A corrected version is attached.


                                           Sincerely,
                                           Elisabeth A. Shumaker, Clerk of Court


                                          By:
                                                        Amy Frazier
                                                        Deputy Clerk
                                                                              F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         January 18, 2006
                                 TENTH CIRCUIT                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 RANDALL BERRY,

       Petitioner - Appellant,
                                                         No. 05-6185
 v.                                               (D.C. No. 05-CV-00311-C)
                                                         (W.D. Okla.)
 STATE OF OKLAHOMA,

       Respondent - Appellee.


                              ORDER
               DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.


      Randall Berry, a state inmate appearing pro se, seeks a certificate of

appealability (“COA”) to appeal from the district court’s denial of his habeas

petition filed pursuant to 28 U.S.C.§ 2241. Mr. Berry claims that the Department

of Corrections violated the ex post facto clause by failing to promote him in

classification levels as a result of a change in policy occurring after his

disciplinary action. Mr. Berry contends that the district court wrongly dismissed

his appeal as untimely. R. Doc. 9. Because Mr. Berry has not made “a

substantial showing of the denial of a constitutional right,” 28 U.S.C. §

2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA and
dismiss the appeal.

      While serving a thirty-five year sentence, a disciplinary committee found

Mr. Berry guilty of battery of a staff member resulting in bodily harm, a “Class

A” offense. R. Doc. 1 at Ex. 2. Mr. Berry alleges that amendments in

Department of Corrections (“DOC”) policy on March 19, 1996 and April 9, 1997,

changed the class of his misconduct, resulting in his being held at class level two

and thus has substantially lengthened his sentence. R. Doc. 1 at 5-6. Mr. Berry

filed for habeas relief on March 18, 2005.

      The magistrate judge recommended that the petition be dismissed as time

barred pursuant to the one-year limitation period in 28 U.S.C. § 2244(d)(1)(D).

R. Doc. 6. The one year limitation began to run when the factual predicate of Mr.

Berry’s claims could have been discovered through due diligence. 28 U.S.C. §

2244(d)(1)(D). The latest possible date Mr. Berry could have been considered

aware of his claims was on December 11, 2003. 1 R. Doc. 1 at Ex. 3. As such, the

statute of limitations expired on December 11, 2004. The magistrate judge also

rejected equitable tolling because Mr. Berry failed to show extraordinary

circumstances justifying tolling; moreover, the lack of diligence with which Mr.


      1
        We note the magistrate correctly observed that with the exercise of
diligence, Mr. Berry’s claims would have been known to him much earlier. We
need not reach this point however, because it is clear Mr. Berry knew about his
claims on December 11, 2003, and thus we need not engage in a review of Mr.
Berry’s diligence up to that time (or lack thereof).

                                        -2-
Berry pursued his claims, makes equitable tolling inappropriate. See Gibson v.

Klinger, 232 F.3d 799, 808 (10th Cir. 2000).

      Where the district court dismisses a petition on procedural grounds, a COA

requires the inmate to demonstrate that it is reasonably debatable whether (1) the

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

districts court’s procedural ruling is correct. Slack, 529 U.S. at 484; see

also Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). The district court’s

procedural ruling is not reasonably debatable.

      We DENY Mr. Berry’s application for a COA and DISMISS the appeal.



                                         Entered for the Court

                                         Paul J. Kelly, Jr.
                                         Circuit Judge




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