                                                                           FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                      UNITED STATES COURT OF APPEALS                 April 10, 2008
                                                                 Elisabeth A. Shumaker
                                  TENTH CIRCUIT                      Clerk of Court



 GEORGE STEFFEY, JR.,

                 Petitioner-Appellant,                    No. 07-7077
          v.                                             (E.D. of Okla.)
 MARTY SIRMONS, WARDEN,                     (D.C. No. 6:06-CV-00304-RAW-KEW)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before LUCERO, TYMKOVICH, and HOLMES, Circuit Judges. **


      Petitioner Steffey asks this court for a Certificate of Appealability (COA)

to appeal the district court’s order dismissing his petition for a writ of habeas

corpus filed under 28 U.S.C. § 2241. The district court denied Steffey’s habeas

petition as time-barred by 28 U.S.C. § 2244(d)(1)(D). Steffey has not addressed

the district court’s decision on the time-bar, but rather reasserts his claims on the

merits.


      *
         This order is not binding precedent except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
      We agree with the district court’s holding that Steffey’s petition for a writ

of habeas corpus is time-barred under § 2244(d)(1)(D). Accordingly, his request

for a COA is DENIED.

                              I. Factual Background

      In September 1996, Steffey escaped from an Oklahoma community work

center where he was incarcerated. After his capture and return to custody, he

received an additional sentence of four years for the escape. Under Oklahoma

law, this conviction made Steffey ineligible for Level 3 or 4 earned credit status,

designations which afford greater rights to inmates. In the years since the escape

conviction, Steffey has committed a number of acts causing the assessment of

additional misconduct points, including his participation in a prison riot on July

10, 2005 which resulted in the death of an inmate, further restricting his

eligibility for more favorable earned credit status.

      Proceeding pro se, 1 Steffey filed a petition for writ of habeas corpus on

August 3, 2006, alleging, in the words of the district court, that “his security

points . . . are being applied inconsistently and in violation of the prohibition

against ex post facto laws . . . [and that] his jail time in Mayes County should be




      1
         Because Steffey proceeds pro se, we review his pleadings and filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).

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applied toward his sentence.” R., Doc. 46 at 1. 2 Steffey claims these actions

denied him eligibility for sentence reductions afforded by a higher earned credit

status.

          The district court found Steffey’s claims to be time-barred under

§ 2244(d)(1)(D), which provides for a one-year statute of limitations on habeas

petitions. The district court took July 10, 2005, the date of Steffey’s most recent

reported misconduct, as the latest possible date to toll the one-year statute of

limitations, rendering Steffey’s claim time-barred as of July 10, 2006.

Accordingly, Steffey’s habeas petition filed on August 3, 2006 was untimely.

The district court noted that Steffey subsequently filed a grievance on October 10,

2006 but the statute of limitations had already run, so it was not tolled by the late

filing.

                                     II. Discussion

          The Antiterrorism and Effective Death Penalty Act (AEDPA) conditions a

petitioner’s right to appeal a denial of habeas relief under § 2241 upon a grant of

a COA. Montez v. McKinna, 208 F.3d 862, 868–69 (10th Cir. 2000). A COA

requires the applicant to demonstrate a “substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253. When the district court denies a habeas

petition on procedural grounds, a COA should issue only when the prisoner shows


          2
         Steffey complains that jail time in county jail prior to his state
penitentiary incarceration should be applied towards his sentence.

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that “jurists of reason would find it debatable whether the petition states a valid

claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

      Section 2244(d)(1) establishes a one-year statute of limitations for the

filing of a habeas petition. Relevant here is subsection (D), which refers to “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). The application of this clause depends on the factual

circumstances of the underlying allegations. Based on the facts alleged here, we

conclude Steffey’s claim is time-barred.

      First, although the district court used July 10, 2005, the date of Steffey’s

most recent misconduct, the record discloses that the “factual predicate of the

claim” arose, at best, at a much earlier date. Id. Steffey’s only contentions in his

petition arise from the reduction of earned credits from the 1996 escape and his

county court time prior to that. 3 The record shows no timely effort to

administratively contest his classification status as a result of these incidents. In

fact, the first recorded grievance arising from the 1996 incident was not filed until

July 1, 2005. This cannot be considered timely.

      3
         The district court looked to later incidents of misconduct, including the
July 10, 2005 riot, none of which were raised by Steffey in the district court, nor
in his briefs on appeal. These later incidents are not before us.

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      Nor does Steffey contend he was unaware of the reduction in points or the

adjustments to his earned credit level. To the contrary, the record shows a series

of misconducts stretching back to 1998 where Steffey’s earned credits were

periodically adjusted pursuant to the prison’s classification system. Given the

nearly ten-year window between the escape incident and the filing of Steffey’s

habeas claim in the district court on August 3, 2006, his claim is barred by the

one-year statute of limitations.

      Second, we conclude Steffey did not take advantage of the administrative

review process to toll the statute of limitations. In some situations, the “timely

and diligent exhaustion of administrative remedies” can provide a later date for

tolling the statute of limitations. Dulworth v. Evans, 442 F.3d 1265, 1268 (10th

Cir. 2006). Where a prisoner “timely and diligently exhausts his administrative

remedies,” the effective date under § 2244(d)(1)(D) “is the date that the denial of

[the complainant’s] administrative appeal becomes final.” Id. at 1268–69.

Nothing in the record indicates Steffey timely pursued and exhausted his

administrative remedies.

      Finally, Steffey does not qualify for equitable tolling. The one-year time-

bar under § 2241(d)(1) may be subject to equitable tolling only in extraordinary

circumstances. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998). Equitable

tolling is appropriate where the time-bar “raises serious constitutional questions

and possibly renders the habeas remedy inadequate and ineffective.” Id. Here,

                                          -5-
however, Steffey did not address equitable tolling in his brief, and the record

shows his petition does not qualify. We see no reason why applying the one-year

statute of limitations would raise “serious constitutional questions” or render the

habeas remedy “inadequate and ineffective.” See Slack, 529 U.S. at 484

( “[w]here a plain procedural bar is present and the district court is correct to

invoke it to dispose of the case . . . no appeal [is] warranted.”).

                                   III. Conclusion

      For the reasons set forth above, Steffey’s request for a COA is DENIED.

Steffey’s motion to proceed in forma pauperis is also DENIED.

                                                 Entered for the Court,

                                                 Timothy M. Tymkovich
                                                 Circuit Judge




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