                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                    May 13, 2014
                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 BIGLER JOBE STOUFFER, II,

              Petitioner - Appellant,
                                                       No. 14-7006
 v.                                       (D.C. No. 6:12-CV-00329-RAW-KEW)
                                                    (E. D. Oklahoma)
 ANITA TRAMMELL, Warden,

              Respondent - Appellee.


                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BACHARACH, Circuit Judges.



      Petitioner and appellant, Bigler Jobe Stouffer, II, a state prisoner

proceeding pro se, seeks a Certificate of Appealability (“COA”) to enable him to

appeal the district court’s dismissal of his amended petition for a writ of habeas

corpus, pursuant to 28 U.S.C. § 2241. Having concluded that he fails to meet the

standards for issuance of a COA, we deny Mr. Stouffer’s request for a COA and

dismiss this matter.




      *
       This order is not binding precedent, except under the doctrines of law of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.
      In 1985, Mr. Stouffer was convicted of first degree murder and of shooting

with intent to kill. He was sentenced to death on the first conviction and life

imprisonment on the second. See Stouffer v. Reynolds, 168 F.3d 1155, 1158

(10th Cir. 1999). In 2000, we affirmed the grant of habeas relief. See Stouffer v.

Reynolds, 214 F.3d 1231, 1232 (10th Cir. 2000). Mr. Stouffer was retried in

February 2003 and a jury again found him guilty of first degree murder and

shooting with intent to kill. See Stouffer v. State, 147 P.3d 245, 255-56 (Okla.

Crim. App. 2006). He was sentenced to death for the first offense and a

consecutive sentence of 100 years’ imprisonment for the second offense. He is

currently awaiting execution.

      The district court below characterized Mr. Stouffer’s claims in the instant

habeas petition as “vague, unclear and repetitive” but discerned the following

grounds for Mr. Stouffer’s petition:

      Ground I: Petitioner’s Eighth Amendment right to be free from cruel
      and unusual punishment is deliberately ignored by respondent’s
      unauthorized enforcement of Okla. State. tit. 57, § 138/OP-060107,
      Class Level Systems on death-sentenced petitioner.

      Ground II: Petitioner’s Fourteenth Amendment rights to due process
      and for equal protection are withheld or denied by respondent’s
      unauthorized enforcement of Okla. Stat. tit. 57, § 138/OP-060107
      upon death-sentenced petitioner.

The court further noted:

             Petitioner specifically challenges respondent’s legal authority
      to (1) initially commit death-sentenced petitioner into the class level
      system, OP-060107, (2) the prefunctory [sic] evaluations therein, and

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      (3) the indefinite withholding/denials of petitioner’s rights,
      privileges, and immunities, without providing petitioner a meaningful
      mechanism to receive the fundamental elements of due process and
      finality.

Opinion & Order at 1-2; R. Vol. 1 at 62-63. 1

      Mr. Stouffer apparently seeks reversal and expungement of all prior

enforcement of Okla. Stat. tit., § 138/OP-060107 against him.

      The Warden/Respondent sought dismissal of the petition on various

grounds, one of which was that Mr. Stouffer’s petition was filed beyond the one-

year statute of limitations imposed by the Antiterrorism and Effective Death

Penalty Act of 1996, 28 U.S.C. § 2244(d):

      (1) A 1-year period of limitation shall apply to an application for a
      writ of habeas corpus by a person in custody pursuant to the
      judgment of a State court. The limitation period shall run from the
      latest of . . .



      1
         Mr. Stouffer refers to Okla. Stat. tit. 57, § 138(A), which provides in
pertinent part: “[E]very inmate of a state correctional institution shall have their
term of imprisonment reduced monthly, based upon the class level to which they
are assigned . . . . Each earned credit is equivalent to one (1) day of incarceration
. . . .” The statute directs the Oklahoma Department of Corrections (“ODOC”) to
“develop a written policy and procedure whereby inmates shall be assigned to one
of four class levels . . . .” Okla. Stat. tit. 57, § 138(B). In one of the many prior
proceedings in our court involving Mr. Stouffer, we described Mr. Stouffer’s
situation as follows: “The ODOC has developed an internal regulation pursuant
to which inmates are assigned to a class level which determines the rate at which
credits are earned and the degree to which privileges are afforded. See OP-
060107(II). On August 1, 2007, Stouffer was demoted from Level 4 to Level 1.
He claims this demotion resulted in the loss of earned credits and the loss of his
ability to earn such credits.” Stouffer v. Workman, No. 09-7029, slip op. at 2-3
(10th Cir. Oct. 8, 2009) (unpublished).

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      (D) 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). As the district court correctly noted, the one-year

period also applies to § 2241 habeas corpus actions. Burger v. Scott, 317 F.3d

1133, 1138 (10th Cir. 2003).

      Mr. Stouffer claims he is entitled to relief because he has been sentenced to

death and, therefore, the state statute concerning earned credits does not apply to

him. The district court determined that “[p]ursuant to 28 U.S.C. § 2244(d)(1)(D),

the limitations period began to run when he discovered or could have discovered

the factual predicate of his claim. [Mr. Stouffer] asserts in his amended petition

that he has been raising this issue in litigation as far back as 2006.” Opinion &

Order at 2; R. Vol. 1 at 63 (citing Amended Habeas Petition at 2; R. Vol. 1 at 20).

Accordingly, “[b]ased on his own statement, [Mr. Stouffer’s] one-year limitations

has expired.” Id.

      The district court also determined that, because Mr. Stouffer did not

diligently pursue his claim, he was not entitled to application of the doctrine of

equitable tolling. Equitable tolling is available only in “rare and exceptional

circumstances.” Laurson v. Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007). A

petitioner carries the burden to show that equitable tolling is appropriate because

(1) “he has been pursuing his rights diligently,” and (2) “some extraordinary

circumstance stood in his way.” Lawrence v. Florida, 549 U.S. 327, 336 (2007).

                                         -4-
“[F]ailure to timely file [must be] caused by extraordinary circumstances beyond

his control,” Burger, 317 F.3d at 1141, and “[a]n inmate bears a strong burden to

show specific facts to support his claim of extraordinary circumstances and due

diligence.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir. 2008). The district

court dismissed this argument as follows:

             Petitioner has filed two responses to the motion, both alleging
      this action is not time-barred. Petitioner admits he has had previous
      administrative actions concerning this issue and contends each had a
      separate limitations period. The issue, however, is when he first
      discovered that Okla. Stat. tit. 57, § 138/OP-060107, Class Level
      Systems, was wrongfully being applied to him. His separate
      administrative appeals on this same issue did not restart the one-year
      limitation. Furthermore, petitioner has been challenging the
      application of Okla. Stat. tit. 57, § 138, to him, as a death-sentenced
      prisoner, as early as 2008. See Stouffer v. Sirmons, No. CIV-08-
      156-RAW-KEW (E.D. Okla. Apr. 28, 2008); Stouffer v. Workman,
      No. CIV-10-298 (E.D. Okla. Aug. 9, 2010); Stouffer v. Workman,
      No. 10-443 (E.D. Okla. Nov.22, 2010).

Opinion & Order at 3; R. Vol. 1 at 64. 2

      A state prisoner must obtain a COA before pursuing a habeas petition.

Allen v. Zavaras, 568 F.3d 1197, 1199 (10th Cir. 2009); 28 U.S.C.

§ 2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right,” which is accomplished when an


      2
        The Warden/Respondent made additional arguments in support of her
motion to dismiss. She argued that Mr. Stouffer was not properly before the
court, inasmuch as he was not challenging the legality of his incarceration and
was therefore not entitled to habeas relief, and she argued that his petition was an
improper successive one. We need not address those arguments, but simply note
that Mr. Stouffer’s petition faced many barriers.

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applicant shows “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) (quotation omitted). An applicant

denied habeas relief on procedural grounds “must also show ‘that jurists of reason

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

ruling.’” Coppage v. McKune, 534 F.3d 1279, 1281 (10th Cir. 2008 ) (quoting

Slack, 529 U.S. at 484).

      As indicated, the district court thoroughly explained why Mr. Stouffer’s

petition is time-barred and not eligible for equitable tolling. No reasonable jurist

could dispute the propriety of that conclusion.

      For the foregoing reasons, we DENY Mr. Stouffer a COA and DISMISS

this matter.

                                                ENTERED FOR THE COURT


                                                Stephen H. Anderson
                                                Circuit Judge




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