                                                            FILED
                                                 United States Court of Appeals
                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                  September 7, 2007
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court

 FRED D . TUG GLE,

              Petitioner-A ppellant,                     No. 07-7020
       v.                                              (E.D. Oklahoma)
 M IK E ADDISON,                                (D.C. No. 06-CV-78-RAW -KEW )

              Respondent-Appellee.




                                       OR DER


Before H E N RY, TYM K O VICH , and HO LM ES, Circuit Judges.


      Fred D. Tuggle seeks a certificate of appealability (“COA”) to appeal the

district court’s order denying his “Petition for Post Conviction Appeal” as time-

barred. See Rec. doc. 1, at 1. For the reasons set forth below , we deny M r.

Tuggle’s application and dismiss this matter.

                                 I. BACKGROUND

      On December 9, 1959, an Oklahoma state trial court sentenced M r. Tuggle

to life imprisonment after he pleaded guilty to two counts of first-degree murder.

M r. Tuggle did not file a direct appeal of his convictions and sentence. However,

prior to the instant case, M r. Tuggle brought at least three post-conviction

actions: (1) a 28 U.S.C. § 2254 petition (which was apparently a second habeas
petition filed under § 2254), in which he alleged that his plea was coerced and

that the state had failed to show that he had voluntarily waived his Sixth

Amendment rights w hen he pleaded guilty; (2) a 28 U.S.C. § 2241 action, in

which he alleged that the state did not possess the original or certified judgments

and sentences, in violation of Oklahoma law; and (3) a “Petition for Order Nunc

Pro Tunc,” in which he argued that the state had violated the plea agreement by

holding him beyond the time agreed. In each of these actions, the district court

denied relief. In the first and third actions, this court affirmed the denial of relief,

and, in the second action, we denied M r. Tuggle’s application for a COA. See

Tuggle v. Evans, No. 94-7094, 1995 W L 3979 (10th Cir. Jan. 4, 1995); Tuggle v.

Hines, No. 03-6354 (10th Cir. Aug. 17, 2004) (unpublished order); Tuggle v.

County of C herokee, 147 F. App’x 52 (10th Cir. 2005).

      On February 23, 2006, M r. Tuggle filed the action at issue here, a “Petition

for Post-Conviction Appeal,” in which he alleged that: (1) the prosecution had

agreed that, in exchange for a guilty plea to the first-degree murder charges, M r.

Tuggle would serve a sentence of no more than seven years’ imprisonment and

that the state breached that agreement by failing to release him once that period

had elapsed; and (2) the state did not provide him with a hearing prior to the

revocation of his parole on M arch 31, 1989.

      The district court dismissed M r. Tuggle’s action as untimely. The court

reasoned that M r. Tuggle had until April 24, 1997 (one year after the effective


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date of the Anti-Terrorism and Effective Death Penalty Act) to file these claims in

federal court. See 28 U.S.C. § 2244(d)(1) (stating that “[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”); Hoggro v. Boone, 150 F.3d

1223, 1226 (10th Cir. 1998) (stating that “for prisoners whose convictions became

final before April 24, 1996, the one-year statute of limitation does not begin to

run until April 24, 1996”); see also Burger v. Scott, 317 F.3d 1133, 1137 (10th

Cir. 2003) (stating that “applications for writs of habeas corpus challenging the

execution of a state sentence under § 2241 are subject to [the] one-year period of

limitations [established by § 2244(d)]”). Here, M r. Tuggle did not file his

“Petition for Post-Conviction Appeal” until February 23, 2006, more than eight

years after the statute of limitations expired.

                                   II. DISCUSSION

      In order to obtain a COA, M r. Tuggle must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Davis v. Roberts,

425 F.3d 830, 833 (10th Cir. 2005) (holding that a COA is required to appeal the

denial of a state prisoner’s § 2241 application). M r. Tuggle may make this

showing by demonstrating 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.” M iller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal


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quotation marks omitted). “[A ] claim can be debatable even though every jurist

of reason might agree, after the COA has been granted and the case has received

full consideration, that [the] petitioner will not prevail.” Id. at 338.

      In determining whether M r. Tuggle is entitled to a COA we must first

determine whether his two claims are asserted under 28 U.S.C. § 2241 or 28

U.S.C. § 2254. See M ontez v. M cKinna, 208 F.3d 862, 865 (10th Cir. 2000)

(stating that a § 2254 petition “challenge[s] . . . the validity of [a] conviction and

sentence” while a § 2241 petition “attack[s] . . . the execution of [a] sentence”). 1

That characterization is significant here because M r. Tuggle has previously filed

at least one 28 U.S.C. § 2254 petition, see Tuggle, 1995 W L 3979 at *1, and a

district court does not have jurisdiction to address the merits of a second or

successive § 2254 petition until this court has granted the required authorization

under 28 U.S.C. § 2244(b)(3)(A). See 28 U.S.C. § 2244(b)(3)(A) (“Before a

second or successive application permitted by this section is filed in the district

court, the applicant shall move in the appropriate court of appeals for an order


      1
         W e note that our characterization of § 2241 in M ontez has been criticized
by other circuits and is a minority view. See W hite v. Lambert, 370 F.3d 1002,
1005 n.1, 1009 (9th Cir. 2004) (observing that “the Tenth Circuit appears to
implicitly draw a distinction between habeas petitions that attack the underlying
state court judgment, which the court felt would be appropriate under § 2254, and
habeas petitions which do not challenge the underlying state court judgment but
rather attack the execution of a sentence, which the court determined fit better
under § 2241,” disagreeing with this view, and discussing decisions of other
circuits that also have rejected the Tenth Circuit’s view). W e need not address
that issue here, but we note that the characterization of M r. Tuggle’s action as a §
2241 or § 2254 petition does not affect the statute of limitations question.

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authorizing the district court to consider the application.”); Pease v. Klinger, 115

F.3d 763, 764 (10th Cir. 1997) (“The district court had no jurisdiction to decide

[the petitioner’s] successive § 2254 petition without authority from the court of

appeals.”).

      In contrast, “[t]his court has not yet addressed [in a published decision] . . .

whether a similar appellate-court pre-authorization requirement applies before a

prisoner may file a second or successive writ of habeas corpus under § 2241.”

Ackerman v. Novak, 483 F.3d 647, 650 (10th Cir. 2007). W e have stated in

several unpublished decisions that “prior authorization from a court of appeals is

not necessary to file a successive § 2241 petition.” See, e.g., W hite v. M cKinna,

No. 06-1069, 2006 W L 1234867, at *1 (10th Cir. M ay 2, 2006) (collecting cases).

      Here, we conclude that both of M r. Tuggle’s claims challenge the execution

of his sentence. In particular, in his first claim, M r. Tuggle does not challenge

the sentence imposed by the court in 1959. Instead, he asserts that the sentence

imposed (a life sentence that would allegedly result in only seven years’

incarceration because of the prosecutor’s alleged agreement) was not actually

carried out. In his second claim, he challenges the revocation of parole. Both

claims are appropriately raised in a 28 U.S.C. § 2241 action. See Davis v.

Roberts, 425 F.3d 830, 833 (10th Cir. 2005) (stating that “[§ 2241] is the

provision that would ordinarily apply to [a] challenge to the failure to convert [a]

sentence to a lesser term after enactment of [a state statute]); United States v.


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Furman, 112 F.3d 435, 438 (10th Cir. 1997) (concluding that questions of parole

procedure “go to the execution of sentence and, thus, should be brought against

defendant’s custodian under 28 U.S.C. § 2241”). Thus, the district court had

jurisdiction to rule on M r. Tuggle’s motion.

      M oreover, we agree with the district court’s ruling. M r. Tuggle’s “Petition

for Post-Conviction Appeal” was filed well beyond the one-year statute of

limitations established by 28 U.S.C. § 2244. Additionally, M r. Tuggle has failed

to establish that equitable tolling of the limitations period is warranted. See

M arsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (stating that equitable

tolling “is only available when an inmate diligently pursues his claims and

demonstrates that the failure to timely file w as caused by extraordinary

circumstances beyond his control”).



                                III. CONCLUSION

      Accordingly, we DEN Y M r. Tuggle’s application for a CO A and DISM ISS

this matter.

                                                Entered for the Court,




                                                ELISABETH A. SHUM AKER, Clerk




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