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

                            FOR THE TENTH CIRCUIT                        September 27, 2016
                        _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
TYLER WELCH RANDALL,

      Petitioner - Appellant,

v.                                                          No. 16-5109
                                               (D.C. No. 4:16-CV-00043-CVE-FHM)
JOE M. ALLBAUGH, Interim Director,                          (N.D. Okla.)

      Respondent - Appellee.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY*
                   _________________________________

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

      Tyler Randall, a state prisoner appearing pro se, seeks a certificate of

appealability (“COA”) to challenge the dismissal of his 28 U.S.C. § 2241 habeas

petition. Because Randall’s petition is time-barred, we deny a COA and dismiss the

appeal.

                                           I

      In 2009, Randall was sentenced in Oklahoma state court to a term of ten years,

with all but six months suspended, following his guilty plea to a charge of assault and

battery with a deadly weapon. Several years later, Oklahoma moved to revoke

Randall’s suspended sentence, alleging that he violated the terms of his probation by

      *
         This order is not binding precedent, except under the doctrines of law of the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.
committing first degree rape. The trial court revoked Randall’s suspended sentence

on October 5, 2012. On January 22, 2014, the Oklahoma Court of Criminal Appeals

(“OCCA”) affirmed Randall’s revocation order. He did not seek certiorari review.1

      On September 2, 2014, Randall filed a “Motion for 24 Month Judicial Review”

in state court challenging the revocation order. His motion was denied on October

21, 2014. Randall then filed a § 2241 petition in the U.S. District Court for the

Northern District of Oklahoma. However, Randall moved to voluntarily dismiss the

petition because he had not exhausted state remedies. The district court granted his

motion. Randall filed an application for state post-conviction relief on May 1, 2015,

which the trial court denied on September 17, 2015. Randall did not appeal.

      On January 25, 2016, Randall filed a second § 2241 petition challenging the

revocation order.2 The district court dismissed the petition as time-barred and denied

a COA. Randall filed a timely application for a COA with this court.




      1
          Randall was convicted of second degree rape in a separate proceeding.
      2
         Because Randall challenges the revocation of his suspended sentence rather
than the underlying conviction, his claims are properly brought under § 2241. See
McIntosh v. U.S. Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997) (“Petitions
under § 2241 are used to attack the execution of a sentence . . . .”); State v. Hejduk,
232 P.2d 664, 667 (Okla. Crim. App. 1951) (“When execution of a sentence is
suspended, the judgment itself is not impaired or limited. The time for its execution
is merely deferred . . . .”); accord Stoltz v. Sanders, Nos. 00-6188 & 00-6288, 2000
U.S. App. LEXIS 29618, at *5 (10th Cir. 2000) (unpublished) (“To the extent Mr.
Stoltz is challenging the revocation of his [suspended] sentence, we construe his
petition as filed under 28 U.S.C. § 2241 because it challenges the execution of his
sentence, rather than its validity.”).
                                           2
                                             II

       A state prisoner may not appeal the denial of habeas relief under § 2241

without a COA. See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). If a

habeas petition is disposed of on procedural grounds, we will issue a COA only if the

petitioner shows both “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).

       A § 2241 petition is governed by the one-year limitations period set forth in

§ 2244(d)(1). Dulworth v. Evans, 442 F.3d 1265, 1268 (10th Cir. 2006). Under that

provision, Randall was required to file suit within one year of the “date on which the

judgment became final by the conclusion of direct review or the expiration of the

time for seeking such review.” § 2244(d)(1). The revocation order challenged by

Randall became final on April 22, 2014, the last day in which he could have filed a

timely petition for writ of certiorari with the United States Supreme Court. See

Locke v. Saffle, 237 F.3d 1269, 1273 (10th Cir. 2001); Sup. Ct. R. 13(1).

       The limitations period is tolled during the pendency of a “properly filed

application for State post-conviction or other collateral review.” § 2244(d)(2).

During the relevant period, Randall filed a motion for judicial review pursuant to

Okla. Stat. tit. 22, § 982a, which was pending for 49 days,3 and an application for


       3
         We will assume that a motion filed under Okla. Stat. tit. 22, § 982a qualifies
for tolling pursuant to § 2244(d)(2). This is an unresolved issue in our circuit.
                                             3
state post-conviction relief, which was pending for 139 days. Randall is also entitled

to thirty days of tolling during the appeal window from the denial of his post-

conviction application. See Gibson v. Klinger, 232 F.3d 799, 804 (10th Cir. 2000);

Okla. Stat. tit. 22, ch. 18, app., R.5.2(C)(2). He is not entitled to additional time after

the denial of his § 982a motion, because that statute does not provide for appellate

review. Doby, 632 F. App’x at 488. Nor did Randall’s first federal habeas petition

toll the limitations period. See Duncan v. Walker, 533 U.S. 167, 181 (2001).

Accordingly, Randall’s limitations period was tolled for a total of 218 days, until

November 30, 2015.4 His January 25, 2016 petition was thus untimely.

         Randall argues that he is entitled to equitable tolling because Cimarron

Correctional Facility, where Randall is housed, experienced institutional lockdowns

during much of 2015. Equitable tolling may be appropriate if a litigant establishes:

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

circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

The district court declined to equitably toll the limitations period. We review that

decision for abuse of discretion. Burger v. Scott, 317 F.3d 1133, 1138 (10th Cir.

2003).

Compare Doby v. Dowling, 632 F. App’x 485, 488 (10th Cir. 2015) (unpublished)
(assuming § 982a motion tolls limitations period), with Nicholson v. Higgins, 147 F.
App’x 7, 8 n.2 (10th Cir. 2005) (unpublished) (stating that § 982a does not toll the
limitations period, but holding petition untimely regardless).
         4
        The limitations period would be tolled until November 27, 2015, the Friday
after Thanksgiving. Because, as the district court noted, the court is traditionally
closed on that day, the limitations period is extended until Monday, November 30,
2015. See Fed. R. Civ. P. 6(a)(3)(A).
                                             4
      Randall did not allege specific facts showing that his inability to access the

law library during lockdown periods prevented his timely filing of a petition. The

district court noted that Randall was able to file legal documents while on lockdown.

Further, the limitations period was already statutorily tolled for most of the lockdown

periods. Under these circumstances, we cannot say the district court abused its

discretion. See Phares v. Jones, 470 F. App’x 718, 719 (10th Cir. 2012)

(unpublished) (“The mere fact of a prison lockdown . . . does not qualify as

extraordinary absent some additional showing that the circumstances prevented [the

petitioner] from timely filing his habeas petition.”).

                                           III

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




                                             Entered for the Court


                                             Carlos F. Lucero
                                             Circuit Judge




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