                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                       September 1, 2005
                                  TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                               Clerk

 GREGGORY WADE OLIVER,

               Petitioner-Appellant,                     No. 04-1548
          v.                                         District of Colorado
 JOE ORTIZ, Colorado Department of                  (D.C. No. 04-Z-2098)
 Corrections; JOHN SUTHERS,
 Attorney General, State of Colorado,

               Respondents-Appellees.


                                       ORDER *


Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.



      Greggory Wade Oliver, a federal prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the district court’s order denying his

habeas corpus petition under 28 U.S.C. § 2241. Because we conclude that Mr.

Oliver has failed to make a substantial showing of the denial of a constitutional

right, we deny his request for a COA and DISMISS the appeal.




      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
                      Factual and Procedural Background

      Mr. Oliver was convicted of aggravated robbery in 1989 and sentenced to

eight years in prison. He was ordered to pay $10,846.65 to the victim of the

robbery and $700.00 to a Victim Compensation Fund, although he concedes that

restitution was never collected. In July 1993, Mr. Oliver was paroled and in July

1994, he was convicted of another crime and sentenced to twenty years in prison,

to run consecutively with his 1989 sentence.

      In 2000, the Colorado Legislature passed C.R.S.A. § 16-18.5-106, granting

the executive director of the Department of Corrections the authority to apply a

portion of the deposits into an inmate’s bank account to any outstanding

restitution balance existing before, on, or after September 1, 2001. The statute

requires the director to deduct at least 20% of deposits. Subsequently, 20% of all

deposits into Mr. Oliver’s account were deducted and applied toward the

restitution ordered in his 1989 conviction.

      Mr. Oliver challenged the deductions from his inmate account in 2000 and

2003 in motions to the trial court, which were dismissed, and through an original

petition for a writ of mandamus to the Colorado Supreme Court, which was

denied in September 2003. On October 12, 2004, Mr. Oliver filed a 28 U.S.C. §

2241 motion in federal district court making the same claims. The district court

denied his petition and dismissed the action as barred by the one-year statute of


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limitations and failure to exhaust state remedies. It also denied his motion for a

COA and to proceed in forma pauperis under 28 U.S.C. § 1915. Mr. Oliver

appeals.

                                  Standard of Review

       Because Mr. Oliver filed his § 2241 petition after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), his petition is

subject to its provisions. See McGregor v. Gibson, 248 F.3d 946, 951 (10th Cir.

2001). Under AEDPA, a state prisoner bringing a § 2241 habeas corpus claim

must obtain a COA before appealing the district court’s denial of his petition.       See

Montez v. McKinna , 208 F.3d 862, 866–67 (10th Cir. 2000). A COA may issue

“only if the applicant has made a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2);     Miller-El v. Cockrell , 537 U.S.

322, 336 (2003).

       The district court denied Mr. Oliver’s petition on procedural grounds

without reaching the constitutional claims, and accordingly, he is entitled to a

COA only if he “shows, at least, 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.”   Slack v. McDaniel , 529 U.S. 473, 484 (2000). Mr.

Oliver has not made this showing.


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                                       Discussion

       First, the district court’s denial of Mr. Oliver’s claims due to the running of

the one-year statute of limitations is not fairly debatable. Under AEDPA,

“applications for writs of habeas corpus challenging the execution of a state

sentence under § 2241 are subject to a one year period of limitations.”    Burger v.

Scott , 317 F.3d 1133, 1138 (10th Cir. 2003). The period of limitations runs from

the latest of four specific dates:

       (A) the date on which the judgment became final by the conclusion
       of direct review or the expiration of the time for seeking such
       review;
       (B) the date on which the impediment to filing an application created
       by State action in violation of the Constitution or laws of the United
       States is removed, if the applicant was prevented from filing by such
       state action;
       (C) the date on which the constitutional right asserted was initially
       recognized by the Supreme Court, if the right has been newly
       recognized by the Supreme Court and made retroactively applicable
       in cases on collateral review; or
       (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). In Mr. Oliver’s case, the statute of limitations began

running, at the latest, when the factual basis of his claim could have been

discovered by due diligence. According to Mr. Oliver, 20% deductions from

deposits in his prison account began on September 1, 2000. He filed his first

motion in the state trial court on October 18, 2000. On October 26, 2000, the

state court declined to enter the requested order, noting that the motion did not

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include a certificate of mailing or an indication that the state had been properly

served. Mr. Oliver did not pursue any other court proceedings until June 2003.

Thus, the one year statute of limitations, which began in either September or

October 2000 ran long before Mr. Oliver filed his § 2241 habeas corpus petition

on October 12, 2004.

       As the district court noted, the one year limitation in § 2244(d) is not

jurisdictional and may be tolled for equitable reasons in appropriate extraordinary

circumstances. “[E]quitable tolling would be appropriate, for example, when a

prisoner is actually innocent, when an adversary’s conduct–or other

uncontrollable circumstances–prevents a prisoner from timely filing, or when a

prisoner actively pursues judicial remedies but files a defective pleading during

the statutory period.”   Burger , 317 F.3d at 1141 (quoting   Gibson v. Klinger , 232

F.3d 799, 808 (10th Cir. 2000)). “Simple excusable neglect is not sufficient.”       Id.

Mr. Oliver has made no showing of such extraordinary circumstances. He points

out that from October 2000 to June 2003, he attempted to pursue his claims

internally and encountered “essentially 2 ½ years of fruitless letter writing and

dead-end conversations” before petitioning for a writ of mandamus. Appellant’s

Br. 3(j). This is not an uncontrollable circumstance that prevented Mr. Oliver

from timely filing, nor does it indicate that he was actively pursuing judicial

remedies. Thus, equitable tolling is not appropriate.


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      Likewise, whether Mr. Oliver failed to exhaust state remedies before filing

a federal habeas petition is not reasonably debatable. Under the exhaustion

doctrine, “the state prisoner must give the state courts an opportunity to act on his

claims before he presents those claims to a federal court in a habeas petition.”

O’Sullivan v. Boerckel , 526 U.S. 838, 842 (1999). This is achieved when a state

prisoner gives “the state courts one full opportunity to resolve any constitutional

issues by invoking one complete round of the state’s established appellate review

process.” Id. at 845. The applicant bears the burden of showing exhaustion.        See

Olson v. McKune , 9 F.3d 95, 95 (10th Cir. 1993).

      Mr. Oliver raised this claim three times, filing two motions in trial court

between 2000 and 2003 and an original petition for a writ of mandamus in the

Colorado Supreme Court, all of which were dismissed. Mr. Oliver did not give

the state courts a full opportunity to resolve the issues of his case because he

never appealed the trial court’s dismissals, and his petition for mandamus by-

passed, rather than exhausted, the state’s appellate review process. Thus,

reasonable jurists could not debate whether Mr. Oliver exhausted the state’s

appellate review process; it is apparent that he did not.

      Accordingly, we DENY Mr. Oliver’s request for a COA and DISMISS this

appeal. The motion to proceed in forma pauperis is also DENIED. Mr. Oliver’s




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other motions are DENIED as moot.

                                          Entered for the Court,

                                          PATRICK FISHER, Clerk of Court




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