                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                          APR 25 2005
                               TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk

 JIMMY PHILLIPS,

       Petitioner-Appellant,

 v.                                                      No. 04-6304
                                                       (CV-04-627-M)
 MELINDA GUILFOYLE,                                     (W. D. Okla.)

       Respondent-Appellee.


        ORDER DENYING A CERTIFICATE OF APPEALABILITY


Before BRISCOE , LUCERO , and MURPHY , Circuit Judges.


      Jimmy Phillips, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2241 habeas corpus

petition attacking the execution of his sentence. For substantially the same

reasons set forth by the district court, we DENY Phillips’ request for a COA and

DISMISS.

      On July 18, 1986, Phillips was paroled from a sentence imposed in 1970.

While on parole, Phillips was convicted on new charges and returned to the

custody of the Oklahoma Department of Corrections (“DOC”) on seventeen

concurrent twenty-year sentences. On September 20, 1988, Phillips’ original

parole was revoked, with the remainder of his original sentence to run
consecutively to the more recent convictions. Phillips discharged the sentences

on the more recent convictions on October 29, 2002 and was rebilled to his parole

revocation sentence.      On May 19, 2004, Phillips filed the instant petition in

federal district court pursuant to § 2241. 1 In his habeas petition, Phillips argued

that he did not receive    Ekstrand 2 credits for job assignments from 1972 to July

1973 and from 1974 to October 1984, that the DOC’s policy regarding compliance

with Ekstrand “violates the U.S. District Court for the Eastern District of

Oklahoma 1993 ruling in       Scales v. Reynolds ,” and finally that the DOC policy

   1
     Phillips’ petition was filed after April 24, 1996, the effective date of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result, AEDPA’s
provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278, 1282 n.1
(10th Cir. 1999) (citing Lindh v. Murphy, 521 U.S. 320 (1997)). AEDPA
conditions a petitioner’s right to appeal a denial of habeas relief under § 2241
upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A); Montez v. McKinna, 208
F.3d 862 (10th Cir. 2000) (holding that § 2253(c)(1)(A) requires a state prisoner
to obtain a COA regardless of whether he is seeking relief under § 2254 or under
§ 2241). A COA may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.” § 2253(c)(2). This requires
Phillips to show “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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because the
district court denied Phillips a COA, he may not appeal the district court’s
decision absent a grant of COA by this court.
   2
     In Ekstrand v. Oklahoma , 791 P.2d 92 (Okla. Crim. App. 1990),    overruled on
other grounds by Waldon v. Evans , 861 P.2d 311 (Okla. Crim. App. 1993), the
Oklahoma Court of Criminal Appeals held that Oklahoma inmates who had been
convicted of offenses committed before the effective date of amendments to
Oklahoma’s earned credit statute were entitled to “the credits allotted under the
statute effective on the date their crime was committed” if they were
“disadvantaged by the amended statute. . . .”  Ekstrand , 791 P.2d at 95.

                                             -2-
providing that inmates incarcerated as parole violators are subject to loss of the

credits they earned prior to parole violates his due process rights. The district

court dismissed his claims as time-barred after taking judicial notice that since

1976 Oklahoma law has required that the accumulated time of every inmate be

tallied monthly and that a copy be provided to the inmate. It concluded that

Phillips, through the exercise of due diligence, under § 2244(d)(1), should have

been aware of the credits supposedly due him in the 1970’s and 1980’s, prior to

the expiration of the one year grace period established by AEDPA and     Hoggro v.

Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998). It thus dismissed Phillips’

habeas petition as untimely because it was filed well after the expiration of the

AEDPA grace period on April 24, 1997.    3



       We have carefully reviewed the record on appeal, and conclude that the

district court correctly denied Phillips’ habeas petition as untimely. Therefore,


   3
     The district court noted that Phillips, in arguing that his motion was timely,
attached a document entitled “Oklahoma Department of Corrections Time Sheet
for the Month of May 31, 2004” that shows 23,519 “Days Remaining” for his
sentence, which did not appear to contain any earned credit tally. This contrasted
with the affidavit of Jim Rabon, the Administrator of Sentence Administration
and Offender Records for the DOC, which indicated that the remaining days on
Phillips’ sentence were 11,141 as of the end of May 2004. The district court
specifically reminded Phillips that if he has a claim that his sentence tally is
incorrect based upon this document, such a claim would not be barred by the
AEDPA limitation period, and could be brought after exhaustion of any available
state remedies. We remind Phillips that any claim based on the information in
this document must be filed prior to the running of the AEDPA statute of
limitations applicable to that claim.

                                          -3-
we APPROVE Phillips’ request to proceed in forma pauperis, DENY his

application for a COA and DISMISS the appeal.



                                          ENTERED FOR THE COURT

                                          Carlos F. Lucero
                                          Circuit Judge




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