                                                                                     FILED
                                                                         United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                             Tenth Circuit

                            FOR THE TENTH CIRCUIT                                May 14, 2019
                        _________________________________
                                                                             Elisabeth A. Shumaker
                                                                                 Clerk of Court
 LARRY DEAN SHELMAN,

       Petitioner - Appellant,

 v.                                                            No. 19-7002
                                                  (D.C. No. 6:18-CV-00172-RAW-KEW)
 RICK WHITTEN, Warden,                                         (E.D. Okla.)

       Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

Before MATHESON, McKAY, and BACHARACH, Circuit Judges.
                 _________________________________



       Larry Dean Shelman, a state prisoner appearing pro se,1 seeks a certificate of

appealability (“COA”) to challenge the district court’s dismissal of his 28 U.S.C. § 2241

petition as untimely. Because Mr. Shelman failed to invoke federal jurisdiction or failed

to state a valid claim, we deny 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         This order is not binding precedent, except under the doctrines of law of the case,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.
       1
        Because Mr. Shelman proceeds pro se, we construe his filings liberally but do
not serve as his advocate. United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009).
                                    I. BACKGROUND

       In December 1991, Mr. Shelman pled no contest to first degree murder and

kidnapping. He received consecutive sentences of life and 10 years in prison,

respectively.

       Mr. Shelman applied for state post-conviction relief. In 1995, the state district

court denied his application, and the Oklahoma Court of Criminal Appeals (“OCCA”)

affirmed. In 2016, he applied again for post-conviction relief in the state district court,

including a request for a sentence reduction under the Oklahoma Truth in Sentencing Act.

The court held a hearing on March 8, 2017 and denied relief. The OCCA affirmed on

May 21, 2018.

       On June 6, 2018, Mr. Shelman filed a § 2254 application in the United States

District Court for the Eastern District of Oklahoma, arguing that the state court’s denial

of sentencing relief under the Oklahoma Truth in Sentencing Act violated his right to due

process. The state moved to dismiss the application as time-barred under the Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”), which imposes a one-year

statute of limitations. 28 U.S.C. § 2244(d)(1). In response, Mr. Shelman argued that his

March 8, 2017 state court hearing produced new evidence of his rehabilitation which,

“had it been introduced at trial, . . . would have resulted in a portion of [his] sentence

being suspended.” ROA at 68.2 He thus argued his one-year AEDPA limitation period




       2
         Mr. Shelman alleged that the state court said he was making progress with
rehabilitation, ROA at 10, 13, but he provided no documentary support for this allegation.
                                               2
began on March 8, 2017 and should have been equitably tolled—or paused—until May

21, 2018, when the OCCA affirmed denial of his post-conviction relief.

       The district court determined that Mr. Shelman was challenging the execution of

his sentence rather than its validity and construed his application as a 28 U.S.C. § 2241

petition. It dismissed the petition as time-barred and denied a COA. Mr. Shelman filed a

notice of appeal.

                                      II. DISCUSSION

       Mr. Shelman seeks a COA to challenge the district court’s dismissal of his § 2241

petition as untimely. We deny a COA for lack of jurisdiction or because Mr. Shelman

failed to allege a claim on which relief may be granted. See Davis v. Roberts, 425 F.3d

830, 834 (10th Cir. 2005) (courts of appeal may deny a COA on any ground supported by

the record even if not relied on by the district court).

       Under 28 U.S.C. § 2253(c)(1)(A), a state prisoner bringing a § 2241 claim must

first obtain a COA. Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding that

“a state prisoner must obtain a COA to appeal the denial of a habeas petition, whether

such petition was filed pursuant to § 2254 or § 2241”). When, as here, the district court

denied a habeas application on procedural grounds, a COA may issue only if the

applicant demonstrates (1) “that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right” and (2) “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).



                                               3
       Federal habeas relief is available to prisoners who are “in custody in violation of

the Constitution or laws or treaties of the United States.” 28 U.S.C. §§ 2241(c)(3),

2254(a). “A federal court may not issue the writ [of habeas corpus] on the basis of a

perceived error of state law.” Pulley v. Harris, 465 U.S. 37, 41 (1984); see also Eizember

v. Trammell, 803 F.3d 1129, 1145 (10th Cir. 2015) (“[T]his court’s role on collateral

review isn’t to second-guess state courts about the application of their own laws but to

vindicate federal rights.”).

       Mr. Shelman urged in his federal petition that the state court’s refusal to modify

his sentence under the Oklahoma Truth in Sentencing Act “violate[d] due process of law

guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution.”

ROA at 10. But he provided no support for this assertion. “[A] habeas applicant cannot

transform a state law claim into a federal one merely by attaching a due process label.”

Leatherwood v. Allbaugh, 861 F.3d 1034, 1043 (10th Cir. 2017). The petitioner must

“draw[] enough of a connection between the right to due process and the sentencing

court’s alleged errors to render his claim cognizable on habeas review.” Id. (quotations

omitted).

       Mr. Shelman has not done this. Notwithstanding his conclusory reference to the

Fifth and Fourteenth Amendments, his claim is predicated on an alleged error in the

application of state law—the Oklahoma Truth in Sentencing Act—and not a

constitutional violation. Because federal courts may not provide habeas relief to

petitioners who raise claims grounded in state law, this claim fails for either lack of



                                              4
federal jurisdiction or for failure to state a valid claim. Accordingly, Mr. Shelman is not

entitled to a COA.

                                   III. CONCLUSION

       Despite his “due process label,” Leatherwood, 861 F.3d at 1043, Mr. Shelman has

raised a state claim. We thus deny a COA and dismiss.




                                              Entered for the Court


                                              Scott M. Matheson, Jr.
                                              Circuit Judge




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