                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                    UNITED STATES CO URT O F APPEALS
                                                                September 6, 2007
                                                   Elisabeth A. Shumaker
                             TENTH CIRCUIT             Clerk of Court



 R OY EA STER WO O D ,

               Petitioner - A ppellant,                  No. 06-7115
          v.                                              E.D. Okla.

 STEVEN BECK, W arden of the M ack              (D.C. No. 04-CV -00370-FHS)
 Alford Correctional Center,

               Defendant - Appellee.



                              O RD ER DEN YIN G
                      CERTIFICATE O F APPEALABILITY
                       A ND DISM ISSIN G A PPLIC ATIO N


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      Petitioner Roy Easterwood, a state prisoner proceeding pro se, 1 filed a

28 U.S.C. § 2241 petition for a writ of habeas corpus attacking the execution of

his sentence. The district court dismissed the petition as untimely under the

Antiterrorism and Effective Death Penalty Act's (AEDPA ) one-year limitations

period. Easterw ood then filed a request for a certificate of appealability (COA )

and to proceed in form a pauperis (ifp) on appeal. The district court granted

Easterwood’s motion to proceed ifp but denied a CO A. He renews his request for


      1
        Pro se pleadings are liberally construed. Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir.2003).
COA in this Court. Pursuant to 28 U.S.C. § 2253, we deny Easterw ood’s

application for a certificate of appealability and dismiss his application.

                                   I. Background

      In December 1979, Easterwood was convicted of first degree murder in the

District Court for Choctaw County, Oklahoma and sentenced to life

imprisonment, an indeterminate sentence rather than a certain number of years.

In 1997, Oklahoma attempted to revamp its criminal statutes through the Truth in

Sentencing Act. The A ct created m atrices describing the punishment for every

criminal violation. Relevant to this case, Schedule A defined life imprisonment

as “imprisonment for a period of not less than eighteen (18) years nor more than

sixty (60) years . . . .” Oklahoma Truth in Sentencing A ct, 1997 Okla. Sess.

Laws, 1 Reg. Sess., 133 § 4(6) (to be codified at Okla. Stat. tit. 21 § 14(6) (1997

Supp).) The Act was repealed before it w as to take effect. Anderson v. State, 130

P.3d 273, 281 n.19 (O kla. Crim. App. 2006).

      In 2001, the Oklahoma legislature passed amendments to several statutes

dealing with pardons and parole. See e.g. Okla. Stat. tit. 57 § 332.7. The

amendments referred to the matrices for the purpose of parole calculations.

Easterwood claims these references “revived” the matrices as law, not only for

parole purposes, but also to make his formerly indeterminate sentence now a

sentence for a certain amount of years. Thus, according to Easterw ood’s




                                          -2-
calculations, his time served combined with his earned credit days 2 requires his

immediate release.

      On August 23, 2004, Easterwood filed the instant petition for a writ of

habeas corpus, alleging he had completed his sentence and requesting immediate

release. The district court dismissed his claims concluding they were time-barred

by the one-year statute of limitations. 28 U.S.C. § 2244; See Burger v. Scott, 317

F.3d 1133, 1138 (10th Cir. 2003) (applying the § 2244 limitations period to

claims arising under § 2241). Petitions for a writ of habeas corpus must be filed

within one year of certain dates, including “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 district court

determined the provisions of the Oklahoma 2001 Truth in Sentencing Act invoked

by Easterwood provided the “factual predicate” for his claims. Because he filed

his petition more than one year after the statutes went into effect on July 1, 2001,

his petition was untimely. The district court also dismissed Easterwood’s second

claim in which he argued the state failed to comply with Oklahoma post-

conviction procedures, as it was purely a matter of state law and in habeas

proceedings, we “are limited to deciding whether a conviction violated the



      2
         W hile Easterwood recognizes O kla. Stat. tit. 57 § 138 specifically
prohibits the application of earned credits to reduce a life sentence, Easterwood
apparently believes this provision was repealed sub silentio by the 2001
amendments.

                                         -3-
Constitution, laws, or treaties of the United States.” Estelle v. M cGuire, 502

U.S. 62, 68 (1991). Easterwood now seeks permission from this Court to proceed

with his appeal.

                          II. Certificate of Appealability

      A COA is a jurisdictional pre-requisite to our review. M iller-El v.

Cockrell, 537 U.S. 322, 336 (2003). W e will issue a CO A only if Easterwood

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

2253(c)(2). To make this showing, he must establish that “reasonable jurists

could debate whether . . . the petition should have been resolved [by the district

court] in a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000)

(quotations omitted). Insofar as the district court dismissed his habeas petition on

procedural grounds, Easterwood must demonstrate both 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.” Id. “W here a plain procedural

bar is present and the district court is correct to invoke it 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.” Id. W e review the district court’s factual findings for clear error and its




                                          -4-
legal conclusions de novo. English v. Cody, 241 F.3d 1279, 1282 (10th Cir.

2001).

         Easterwood claims the district court erroneously applied the one-year

statute of limitations to his claim. The timeliness issue was raised by the State in

its response to Easterwood’s habeas petition. In his reply, Easterwood argued his

situation renders the statute of limitations inapplicable to his claim for two

reasons. He contended the application of the time-bar violates the Suspension

Clause, U.S. Const. art. I, § 9, cl. 2, the Constitution's prohibition on suspending

the writ. In the alternative, he asserted any limitations period should be equitably

tolled. The district court did not address these arguments in its order dismissing

Easterwood’s petition. However, the arguments are not persuasive.

         Easterwood first posits the application of the one-year statute of limitations

to his claims constitutes a violation of the suspension clause because he is not

attacking his conviction. “W hether the one-year limitation period violates the

Suspension Clause depends upon whether the limitation period renders the habeas

remedy ‘inadequate or ineffective’ to test the legality of detention. The burden is

on the petitioner to demonstrate inadequacy and ineffectiveness.” M iller v. M arr,

141 F.3d 976, 977 (10th Cir. 1998) (citations omitted). Easterwood fails this

burden because he has declined to provide the benefit of argument or legal

authority for this proposition. “W e do not consider unsupported and undeveloped

issues.” M oore v. Gibson, 195 F.3d 1152, 1180 n.17 (10th Cir. 1999).

                                            -5-
      Easterwood next suggests the statute of limitations should not be applied

because the reasons usually associated with the need for finality do not exist here.

However, he cites no legal precedent which rejects a clear Congressional mandate

for the time limitation of a claim merely because a court determines the situation

does not fit general considerations of finality. The U nited States Supreme Court

has “expressed a clear deference to the rules that Congress has fashioned

concerning habeas.” M iller, 141 F.3d at 978. Easterwood also claims the

Oklahoma Board of Pardon and Parole’s tw o-year delay in promulgating rules in

accordance with the Truth in Sentencing Act suggests we should consider 2003 as

the factual predicate for his claims. Consequently, his petition would be

considered timely filed. However, Easterwood makes no attempt to demonstrate

the promulgation of rules had any effect, let alone cause a delay, preventing the

timely filing of his petition.

      Finally, Easterwood claims he is entitled to equitable tolling. “To be

entitled to equitable tolling, [Easterwood] must show ‘(1) that he has been

pursuing his rights diligently, and (2) that some extraordinary circumstance stood

in his way’ and prevented timely filing.” Lawrence v. Florida, 127 S.Ct. 1079,

1085 (2007) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).

“[E]quitable tolling should not be used to thwart the intention of Congress in

establishing a statute of limitations for habeas claims. Accordingly, we have




                                         -6-
limited equitable tolling of the one-year limitations period to ‘rare and

exceptional’ circumstances.” Burger, 317 F.3d at 1141.

      Easterwood points to three factors to demonstrate the equities favor

consideration of his case. First, he argues his claim is akin to a claim of “actual

innocence” because a successful result on his claim will recognize he “has

satisfied the obligation on his sentence, and is currently innocent of any offense

that requires his continued imprisonment.” (R. Vol. I, Tab 9 at 5.) Easterwood

fails to recognize he is challenging his sentence, not his guilt. “‘A person cannot

be actually innocent of a noncapital sentence.’” Reid v. State of Okla., 101 F.3d

628, 630 (10th Cir. 1996) (quoting United States v. Richards, 5 F.3d 1369, 1371

(10th Cir.1993)). Easterwood was convicted of first degree murder and

sentenced to life imprisonment. His situation has not changed. Even if we did

equate his sentencing claim with actual innocence, Easterwood must still show

diligent pursuit of his rights or extraordinary circumstances. He has not done so.

      Second, he claims the state has consistently asserted the matrix never

became law. He argues this position misled him somehow and therefore he

should not be penalized for believing these penal “experts.” (R. Vol. I, Doc. 5 at

6.) He argues the result is “the state can imprison someone indefinitely as long as

they keep them ignorant, confused and misled for at least a year.” (Id. at 5.) This

argument is easily rejected. Easterwood does not explain how he learned of the

state’s position prior to filing his petition nor does he identify any instance in

                                          -7-
which state or prison officials misled him or kept him ignorant or confused.

Adverse positions in legal proceedings are hardly extraordinary circumstances

sufficient to equitably toll a filing deadline.

      Finally, Easterwood claims we should find there are rare and exceptional

circumstances in this case because no other inmate has managed to initiate

“proceedings of equal stature to Petitioner’s theories[.]” (Id. at 6.) W e decline to

comm ent on the “stature” of Easterwood’s theories other than to say he has failed

to demonstrate jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.

      Easterwood’s request for a COA is DENIED and his application

DISM ISSED.

                                         Entered by the C ourt:

                                         Terrence L. O ’Brien
                                         United States Circuit Judge




                                           -8-
