                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                        UNITED STATES COURT OF APPEALS                     June 22, 2012
                                                                      Elisabeth A. Shumaker
                                    TENTH CIRCUIT                         Clerk of Court



 RAYMOND G. ANDERSON,
                 Petitioner–Appellant,                          No. 12-5033
           v.                                      (D.C. No. 4:11-CV-00265-TCK-PJC)
 JANE STANDIFIRD, Warden,                                     (N.D. Oklahoma)
                 Respondent–Appellee.


                ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.


       Petitioner, a state prisoner proceeding pro se, seeks a certificate of appealability to

appeal the district court’s denial of his § 2241 habeas petition. In December 2003,

Petitioner pled guilty to multiple drug charges and three counts of injury to a minor child.

He was sentenced to a rather lengthy term of imprisonment, and a judicial review hearing

was set for January 10, 2005. At the January 2005 judicial review hearing, the state court

judge modified Petitioner’s sentences, ordering him to serve twelve years on the counts of

injury to a minor child with additional years suspended for these counts and for the drug

crimes.



       *
         This order is not binding precedent except under the doctrines of law of the case,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.
       As a result of earned credits he accumulated while in prison, Petitioner was

discharged from prison on December 24, 2008. However, prison officials subsequently

determined Petitioner should not have accumulated earned credits because the crime of

injury to a minor child is subject to Oklahoma’s 85% rule, meaning Petitioner was

required to serve at least 85% of the sentence imposed and was “not [] eligible for earned

credits or any other type of credits which have the effect of reducing the length of the

sentence to less than eighty-five percent (85%) of the sentence imposed.” Okla. Stat. tit.

21, § 12.1. Thus, according to Petitioner’s habeas petition, on April 13, 2009, he was

ordered to report to the probation office, where he “was handcuffed, taken to county jail

and informed that the [Department of Corrections] was returning him to custody because

his injury to a minor child conviction was an 85% crime.” (R. at 9.)

       After he was taken back into custody, Petitioner filed various state pleadings in an

attempt to challenge his defense counsel’s alleged failure to inform him of the 85% rule

during plea negotiations and his return to prison without a due process hearing. After

these challenges failed, Petitioner filed the instant federal habeas petition in April 2011.

The district court then dismissed the petition as time-barred. The court concluded that,

even calculating the limitations period as liberally as possible, Petitioner’s habeas petition

was still untimely. Even if the limitations period did not begin until April 13, 2009, when

Petitioner was allegedly informed that his crime was subject to the 85% rule, and

including tolling for all of the time periods in which properly filed applications for state

collateral review were pending, Petitioner’s deadline for filing his federal habeas petition

                                             -2-
was Monday, April 25, 2011, and Petitioner did not file his petition until April 28, 2011,

at the earliest.

       In his request for a certificate of appealability, Petitioner argues the district court

should not have started the limitations period on April 13, 2009, because, contrary to his

assertions in his habeas petition, he was actually not taken back into custody until April

15, 2009, and he was not informed of the reason why he was being taken back into

custody until June 2009. He thus argues his petition was filed within one year after he

could have discovered the factual predicate of his claims. He also argues he is entitled to

equitable tolling based on the extraordinary circumstances of his re-incarceration after he

was discharged from prison.

       After thoroughly reviewing the record and Petitioner’s filings on appeal, we

conclude that reasonable jurists would not debate the district court’s dismissal of the

habeas petition on timeliness grounds. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Reasonable jurists would not debate whether the district court erred in using the dates

Petitioner provided in his habeas petition to calculate the tolling period, and Petitioner’s

belated attempt to assert new facts is insufficient to show error in the district court’s

decision. Nor would reasonable jurists debate whether the district court abused its

discretion by denying equitable tolling where Petitioner failed to show that he diligently

pursued his claims or that extraordinary circumstances prevented him from filing his

federal habeas petition within the limitations period. Cf. Yang v. Archuleta, 525 F.3d 925,

928-29 (10th Cir. 2008). Therefore, for substantially the same reasons given by the

                                              -3-
district court, we DENY Petitioner’s request for a certificate of appealability and

DISMISS the appeal.


                                                  ENTERED FOR THE COURT



                                                  Monroe G. McKay
                                                  Circuit Judge




                                            -4-
