                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES COURT OF APPEALSFebruary 23, 2012
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 DAVID ROBIN WHITMORE,

              Petitioner - Appellant,                   No. 11-6190
 v.                                                   (W.D. Oklahoma)
 DAVID MILLER, Warden,                          (D.C. No. 5:10-CV-01409-R)

              Respondent - Appellee.


                      ORDER DENYING CERTIFICATE
                          OF APPEALABILITY


Before BRISCOE, Chief Judge, MURPHY and MATHESON, Circuit Judges.



      David Robin Whitmore, an Oklahoma state prisoner, filed an application

for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on December 30, 2010,

alleging prison officials incorrectly calculated his “Ekstrand credits.” See

Ekstrand v. State, 791 P.2d 92, 95 (Okla. Crim. App. 1990), overruled on other

grounds by Waldon v. Evans, 861 P.2d 311 (Okla. Crim. App. 1993). Respondent

moved to dismiss the application, arguing Whitmore had failed to exhaust his

administrative remedies. Respondent also argued the application was untimely

under 28 U.S.C. 2244(d)(1)(D) because it was filed more than one year after the

“factual predicate of the claim or claims presented could have been discovered

through the exercise of due diligence.”
      After providing notice to Whitmore, the district court converted

Respondent’s motion into a motion for dismissal or, in the alternative, for

summary judgment. See Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

Based on Whitmore’s admission that he received a copy of the document

detailing his earned credits in June 2009, the court concluded he discovered the

factual predicate of his claim no later than that date. Whitmore’s habeas

application, however, was not filed until approximately eighteen months later.

Even assuming it was proper to exclude the time Whitmore spent pursuing

mandamus relief in state court, the § 2241 petition was still filed beyond the one-

year statute of limitations. See 28 U.S.C. § 2244(d)(2) (providing the one-year

limitations period is statutorily tolled while “a properly filed application for State

post-conviction or other collateral review with respect to the pertinent judgment

or claim is pending”). The district court also concluded Whitmore failed to

demonstrate any circumstances that would support the equitable tolling of the

one-year limitations period. See Miller v. Marr, 141 F.3d 976, 978 (10th Cir.

1998). Finally, the court concluded Whitmore could not rely on a “continuing

violation” theory. Cf. Smith v. Grubbs, 42 F. App’x 370, 371 (10th Cir. 2002)

(unpublished disposition). Accordingly, the district court concluded Whitmore’s

§ 2241 application was untimely and granted summary judgment in favor of

Respondent.



                                         -2-
      Whitmore now seeks a certificate of appealability (“COA”) to enable him

to appeal the district court’s denial of his § 2241 application. To be entitled to a

COA, Whitmore must show “that jurists of reason would find it debatable

whether the district court was correct in its procedural ruling.” Slack v.

McDaniel, 529 U.S. 474, 484-85 (2000) (holding that when a district court

dismisses a habeas petition on procedural grounds, a petitioner is entitled to a

COA only if he shows both that reasonable jurists would find it debatable

whether he had stated a valid constitutional claim and debatable whether the

district court’s procedural ruling was correct). This court reviews the district

court’s decision on equitable tolling for abuse of discretion. Burger v. Scott, 317

F.3d 1133, 1138 (10th Cir. 2003).

      This court has reviewed Whitmore’s application for a COA and appellate

brief, the district court’s order, the magistrate judge’s report and

recommendation, and the entire record on appeal pursuant to the framework set

out by the Supreme Court in Miller-El and concludes Whitmore is not entitled to

a COA. The district court’s resolution of Whitmore’s claim is not reasonably

subject to debate and the claim is not adequate to deserve further proceedings.

Accordingly, Whitmore is not entitled to a COA. 28 U.S.C. § 2253(c)(2).




                                          -3-
      This court denies Whitmore’s request for a COA and dismisses this appeal.

Whitmore’s motion to proceed in forma pauperis on appeal is granted.



                                            ENTERED FOR THE COURT


                                            Michael R. Murphy
                                            Circuit Judge




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