                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                        January 30, 2006
                                   TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                          Clerk of Court


 JAMES A. BOYD,

          Petitioner-Appellant,
                                                       No. 05-3083
 v.
                                                (D.C. No. 03-CV-3288-SAC)
                                                          (Kansas)
 CHARLES E. SIMMONS; WILLIAM
 L. CUMMINGS,

          Respondents-Appellees.




                                      ORDER


Before SEYMOUR, HARTZ, and McCONNELL, Circuit Judges.


      James Adolphas Boyd, a state prisoner, applies for a certificate of

appealability (COA) to challenge the district court’s dismissal of his petition for

habeas relief pursuant 28 U.S.C. § 2241. 1 The district court held the petition time

barred by the one-year statute of limitations in the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), see 28 U.S.C. § 2244(d). We exercise


      1
        Mr. Boyd initially framed his petition for relief under 28 U.S.C. § 2254.
Because he was actually challenging the execution of his state sentences rather
than the validity of his convictions, the district court properly construed his
petition as arising under 28 U.S.C. § 2241. See Montez v. McKinna, 208 F.3d
862, 865 (10th Cir. 2000).
jurisdiction over Mr. Boyd’s case under 28 U.S.C. § 2253(c)(1) and deny his

request for a COA.

      This case arises out of Mr. Boyd’s challenge to the Kansas state sentence

he received in 1992 for various crimes he committed. He initially filed a motion

in state court to modify his sentence, which was denied in 1993. He did not

appeal that denial. In 2002, Mr. Boyd filed a state court habeas action claiming

that the computation of his 1992 sentence violated the ex post facto provisions of

the United States Constitution. 2 The state court denied all relief, and the Kansas

Supreme Court affirmed that decision in June of 2003. Mr. Boyd filed his federal

habeas petition on July 15, 2003.

      In his federal petition, Mr. Boyd acknowledged that his habeas petition was

subject to a one-year period of limitations under AEDPA. He further conceded

that his 1992 sentence was final before AEDPA was enacted on April 26, 1996.

Thus, absent some tolling event Mr. Boyd had one year, or until April 23, 1997, to

timely file his federal habeas action. See Moore v. Gibson, 250 F.3d 1295, 1297

(10th Cir. 2001); Hoggro v. Boone, 150 F.3d 1223, 1225 (10th Cir. 1998).



      2
        Mr. Boyd was previously sentenced in two other actions in 1969 and 1980,
and was on parole for those offenses when he committed the crimes resulting in
his 1992 conviction. Mr. Boyd essentially alleges that in calculating his sentence
start date and his parole eligibility date for the 1992 convictions, his prior
sentences were retroactively enhanced under Kansas statutes governing sentence
computation and parole eligibility.

                                         -2-
Because his petition for federal habeas relief was filed six years beyond the

limitations period, Mr. Boyd argued to the district court that he was entitled to

equitable tolling. 3

       Equitable tolling “is only available when an inmate diligently pursues his

claims and demonstrates that the failure to timely file was caused by extraordinary

circumstances beyond his control.” Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000). Mr. Boyd contended he was diligent in attempting to discover and

raise his ex post facto claim but had been denied access to the courts through the

conduct of his appointed counsel and his lack of access to relevant legal

materials.

       In addressing Mr. Boyd’s assertions of diligence, the district court noted

that Mr. Boyd’s own proffered exhibits included a prison document dating from

August 1993 detailing his sentence start and parole eligibility dates. From this

and other records submitted by Mr. Boyd, the court concluded that Mr. Boyd

knew several years prior to the close of the AEDPA limitations period, or at least

could have discovered through the exercise of due diligence, the factual

predicates of his claim, that is, the calculation of his sentence start and parole


       3
        Mr. Boyd also asserted he was entitled to statutory tolling pursuant to 28
U.S.C. § 2244(d)(2), for the time during which he sought state post-conviction
relief for his claims. The district court rejected this argument noting that Mr.
Boyd’s state habeas actions were not filed or pending during the one year tolling
period of April 24, 1996 and April 23, 1997.

                                          -3-
eligibility dates.

       The court also rejected Mr. Boyd arguments that he had been diligent in

pursuing his legal claims during the limitations period. The only evidentiary

support Mr. Boyd provided on this issue included a reference to a letter he wrote

to the Kansas Department of Corrections in November of 1992 concerning the

calculation of his sentence, and copies of three pieces of correspondence with the

Kansas Legal Services for Prisoners (KLSP) regarding the same. Of this

correspondence, only two letters were sent before or during the one-year

limitations period. The court concluded these two letters were not sufficient to

show Mr. Boyd was diligent in pursuing his claims.

       The court likewise discounted Mr. Boyd’s argument that his right of access

to the courts was impeded by his inability to review certain legal materials, as

well by the allegedly ineffective and conflict of interest ridden conduct of his

state appointed counsel. 4 First, the court noted that Mr. Boyd’s own evidence

indicated he was provided counsel by KLSP in lieu of access to a library

containing the state law relevant to Mr. Boyd’s case. Relying on Coleman v.

Thompson, 501 U.S. 722, 756-57 (1991), the court further reasoned that “since

there is no right to assistance of counsel in state habeas proceeding[s], Boyd’s



       4
        The district court summarily dismissed Mr. Boyd’s conflict of interest
allegations as “not based upon substantial facts.” Aplt. App. at 106.

                                         -4-
allegations that appointed counsel ineffectively represented him in those

proceedings do not entitle him to equitable tolling.” Aplt. App. at 104. 5

Consequently, the court held that Mr. Boyd’s claim for federal habeas relief was

not subject to equitable tolling and was therefore untimely. Mr. Boyd now seeks

a COA to challenge the district court’s ruling.

      The issuance of COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). A COA can issue only “if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El, 537 U.S. at 327. When a district court has

dismissed a habeas petition on procedural grounds, a certificate will only issue

when “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).

      Based on our review of the record on appeal, the district court’s order, and


      5
        Mr. Boyd also asserted, in the most conclusory fashion, that he could rely
on this court’s allowance for equitable tolling in light of his claim of actual
innocence. See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (“Equitable
tolling would be appropriate, for example, when a prisoner is actually innocent.”).
The district court rejected this argument out of hand as frivolous. The court also
rejected Mr. Body’s request for an evidentiary hearing on the issue of equitable
tolling.

                                         -5-
Mr. Boyd’s submissions to this court, we are not persuaded jurists of reason

would disagree with the district court’s disposition of Mr. Boyd’s § 2241 petition.

Although Mr. Boyd’s attempts during the limitations period to pursue his legal

claims, either through the request for legal advice or relevant legal materials,

could be deemed to represent some form of diligence on his part, we are not

convinced these actions rise to the level required for the extraordinary relief of

equitable tolling. In sum, reasonable jurists would agree with the district court

that Mr. Boyd’s case does not present “rare and exceptional circumstances”

warranting equitable tolling of AEDPA. Gibson v. Klinger, 232 F.3d 799, 808

(10th Cir. 2000).

      Accordingly, we DENY Mr. Boyd’s request for a COA and DISMISS the

appeal. Mr. Boyd’s request for an evidentiary hearing is MOOT.

                                        SUBMITTED FOR THE COURT

                                        Stephanie K. Seymour
                                        Circuit Judge




                                          -6-
