                                                                            F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUN 29 2004
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 SHURMAN L. DORAN-BEY,

          Petitioner-Appellant,

 v.                                                     No. 04-3005
                                                        (D. Kansas)
 LOUIS E. BRUCE; PHILL KLINE,                   (D.Ct. No. 02-CV-3351-SAC)
 Attorney General of Kansas; THE
 STATE OF KANSAS,

          Respondents-Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before SEYMOUR, LUCERO, and O’BRIEN, Circuit Judges.



      Shurman L. Doran-Bey, appearing pro se, filed an application for a

certificate of appealability (COA) challenging the district court’s dismissal of his

28 U.S.C. § 2241 petition 1, claiming the Kansas correctional authorities


      1
         Although Doran-Bey titled his memorandum of law in support of his
petition as an action “Pursuant to 28 U.S.C. § 2254 Incorporating 28 U.S.C. §
2241,” the district court construed it as a petition filed under 28 U.S.C. § 2241
because it challenged the execution of his sentence, not its validity. See Montez
v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000). We agree, but note that whether
this action is construed under § 2241 or § 2254, Doran-Bey is required to comply
with the applicable statute of limitations. Burger v. Scott, 317 F.3d 1133, 1138
(10th Cir. 2003).
improperly aggregated his sentences and denied him credit for time on parole.

We deny his request for a COA and dismiss the appeal.

I.    Background

      As noted by the Kansas Court of Appeals, “Doran has been continuously

under the supervision of the [Kansas] Department of Corrections (DOC) since

1980 when he was given a controlling sentence of 5 to 20 years for crimes of

aggravated burglary, aggravated robbery, and rape.” Doran-Bey v. State, No.

88,494 (Kan. Ct. App. July 19, 2002); (R., Reno County Doc. No. 01-C-569, at

120). He was conditionally released on parole in 1989. However, within five

months he violated his parole and was returned to prison. He was again

conditionally released on or about June 9, 1990, but was arrested on December 5,

1990, and eventually charged with felony theft, driving under the influence (DUI),

speeding and burglary. Upon pleading guilty to DUI and felony theft, he was

sentenced to one to three years imprisonment, the sentence to run consecutive to

his 1980 sentence.

      In March 1992, Doran-Bey was transported to the Hutchinson Correctional

Facility in Hutchinson, Kansas. Shortly after his arrival at Hutchinson, Doran-

Bey “met with a Unit Team Member . . . who . . . inform[ed] him, that his 1980

and 1990 convictions, had been aggregated according to K.S.A. 1983 Supp. 21-

4608(f)(4) and (5)” and that his aggregate sentence was six to twenty-three years.


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(R. Doc. 2.) After “about 4 years, 10 months and 14 day[s,]” he was again

conditionally released. (Id.) Not surprisingly, he violated parole and was

returned to prison in 1998. The cycle repeated several years later, returning him

to custody in 2001.

      Doran-Bey filed an inmate grievance in 2001, alleging his sentences were

incorrectly calculated. On review, the Unit Team found his sentences had been

correctly computed and the Warden and Secretary of Corrections affirmed those

findings. On December 14, 2001, he filed a petition for writ of habeas corpus in

the state district court. He claimed his 1980 sentence should have been

considered satisfied when he was released on parole—in effect, he claimed he

was entitled to credit for time spent on parole for his 1980 sentence. He also

contended his current sentence was illegal because his 1980 sentence, received

prior to the passage of the Kansas statute authorizing aggregation, could not be

aggregated with his 1990 sentence. The state court dismissed his petition,

concluding he failed to state a cause of action, and even if he had, his claims were

time-barred. The Kansas Court of Appeals affirmed. See Doran-Bey, supra.

      Doran-Bey subsequently filed a petition for a writ of habeas corpus in the

federal district court. The Government moved to dismiss the action, arguing it

was untimely filed. The district court agreed. Finding Doran-Bey was aware of

the facts supporting his claim in 1992, the court concluded the Antiterrorism and


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Effective Death Penalty Act (AEDPA) required Doran-Bey to file a federal habeas

petition (or a state petition to toll the statute of limitations) by April 24, 1997. 28

U.S.C. § 2244(d)(1); Fisher v. Gibson, 262 F.3d 1135, 1142 (10th Cir. 2001)

(when a conviction became final before AEDPA’s effective date of April 24,

1996, a petitioner has one year after AEDPA’s enactment to file a § 2254

petition), cert. denied, 535 U.S. 1034 (2002). Because he did not do so until long

after the AEDPA limitation period had expired, and equitable tolling was not

warranted, the district court dismissed the habeas petition and denied issuance of

a COA.

II.   Discussion

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). 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). “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. This “requires an overview of

the claims in the habeas petition and a general assessment of their merits.”

Miller-El, 537 U.S. at 336. “This threshold inquiry does not require full

consideration of the factual or legal bases adduced in support of the claims. In


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fact, the statute forbids it.” Id.

       When the district court denies a habeas petition on procedural
       grounds without reaching the prisoner’s underlying constitutional
       claim, a COA should issue when the prisoner 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). The test being two-pronged, a

COA may be denied on either basis. Id. at 485. After careful review of the

record, we conclude reasonable jurists could not disagree Doran-Bey failed to file

his petition within the applicable limitation period and equitable tolling is

unwarranted.

       Doran-Bey admits he was informed of the aggregation of his sentences in

1992, the factual basis supporting his claims. Consequently, the limitation period

expired on April 24, 1997 (one year after AEDPA’s passage), in which time he

was required to file his habeas petition or initiate state post-conviction

proceedings. 28 U.S.C. § 2244(d)(2); Burger, 317 F.3d at 1138 (one-year

limitation period for filing a federal habeas petition is tolled during the pendency

of a state application for post-conviction relief properly filed during the limitation

period). Doran-Bey did not file his state habeas petition until December 14,

2001, over four years after the expiration of the one-year limitation period set

forth in 28 U.S.C. § 2244(d)(1)(A). Moreover, he presents no facts supporting an


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entitlement to equitable tolling. See Marsh v. Soares, 223 F.3d 1217, 1220 (10th

Cir. 2000) ("[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"), cert. denied, 531 U.S. 1194

(2001).

III.   Conclusion

       After careful review of his brief, the district court’s order, and the record,

we conclude Doran-Bey has failed to raise a debatable issue as to whether his

petition was improperly dismissed as time barred. Accordingly, we DENY

Doran-Bey’s application for a certificate of appealability and DISMISS the

appeal.



                                        Entered by the Court:

                                        TERRENCE L. O’BRIEN
                                        United States Circuit Judge




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