                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 06a0429n.06
                              Filed: June 22, 2006

                                           No. 05-5166

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


WILLIAM G. ALLEN,                                )
                                                 )
         Petitioner-Appellant,                   )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
QUINTEN WHITE, Commissioner,                     )    MIDDLE DISTRICT OF TENNESSEE
Tennessee Department of Corrections; RICKY       )
J. BELL, Warden,                                 )
                                                 )
         Respondents-Appellees.                  )


         Before: BOGGS, Chief Judge; MOORE, and COOK, Circuit Judges.


         PER CURIAM. William G. Allen, a Tennessee inmate proceeding pro se, appeals the district

court’s determination that his petition for a writ of habeas corpus is time-barred under the Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”). We affirm the judgment of the district

court.


                                                 I


         Allen’s petition challenges the Tennessee Department of Corrections’s (“TDOC’s”)

calculation of sentence credits due him after serving more than 35 years of his 99-year sentence for

murdering a police officer. When Allen was sentenced, Tennessee’s law allowed inmates to earn

such credits for good behavior and for maintaining honor-grade status known as “good and honor
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time ” credits. Tenn. Code Ann. (“T.C.A.”) §§ 41-332 and -334 (1955). In 1980, Tennessee enacted

a new sentence credit scheme effective July 1, 1981. Under this revised scheme, previously earned

“good and honor time” credits would be carried over, but no future “good and honor time” credits

could be earned. Instead, inmates could only earn sentence credits in accordance with the new

scheme, known as “good conduct” sentence credits.


       The procedural history relevant to this appeal began by Allen filing a request for an

administrative declaratory order that the TDOC erred by denying him double sentencing credits

under both the current “good conduct” scheme and the former “good and honor time” scheme. The

TDOC denied Allen’s request to correct the “omission” of credits. The following month Allen

sought chancery court review of this decision. The chancery court granted the TDOC’s motion for

summary judgment, after which Allen appealed to the Tennessee Court of Appeals. The Court of

Appeals denied Allen’s appeal, and the Tennessee Supreme Court denied Allen’s application for

permission to appeal on June 24, 2002.


                                                 II


       On February 11, 2003, having exhausted his state-court remedies, Allen filed a 28 U.S.C.

§ 2254 habeas corpus petition arguing that the TDOC’s application of the sentence credit statutes

violated the Ex Post Facto Clause and his rights under the Fifth and Fourteenth Amendments.


       The district court dismissed Allen’s petition as time barred, determining the starting date for

the one-year statute of limitations under §2244(d)(1) to be AEPDA’s effective date, April 24, 1996.
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See Cook v. Stegall, 295 F.3d 517, 519 (6th Cir. 2002). The court specifically rejected Allen’s

argument that the TDOC’s denial of his request for an administrative declaratory order on February

15, 2000, constituted the factual predicate for his claims under § 2244(d)(1)(D). Rather, it held, the

factual predicate was provided by the passage of the 1980 statute. This having occurred long before

AEPDA’s enactment, § 2244(d)(1)(D) did not apply and Allen’s failure to file his petition within

the year following AEDPA’s enactment barred his claims. The district court granted the TDOC’s

motion to dismiss and refused to issue a certificate of appealability (“COA”).


       On reconsideration, the court granted a COA on the following issues: “1) whether the Court

erred by not construing petitioner’s § 2254 habeas petition as a § 2241 habeas petition; and 2)

whether the court applied the wrong standard of review when determining petitioner’s habeas

petition was time barred.” (J.A. at 131.)


                                                 III


       This court reviews de novo the district court’s dismissal of Allen’s habeas petition as barred

by AEDPA’s statute of limitations. Stegall, 295 F.3d at 519.


                                                 A.


       We review first “whether the district court erred by not construing petitioner’s § 2254 habeas

petition as a § 2241 habeas petition.” In his motion seeking reconsideration of the COA denial,

Allen contended that “he should have invoked 28 U.S.C. § 2241 as the basis for his petition because

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that is the proper section for challenging the manner in which his sentence is executed,” and further

that the “court made a mistake in not recognizing this and converting the petition to § 2241.” (J.A.

at 104.) But because nothing requires courts to convert § 2254 petitions to petitions under § 2241,

Allen fails to articulate a tenable claim. His argument seems to stem from confusion about the

differing collateral relief available to federal and state prisoners.


        Courts interpret § 2241 as the statutory grant of authority to issue habeas writs, and § 2254

as implementing that authority with respect to state prisoners. See White v. Lambert, 370 F.3d 1002,

1006 (9th Cir. 2004) (“Although the text of either statute would appear to confer jurisdiction . . .

Section 2254 is properly understood as in effect implementing the general grant of habeas corpus

authority found in § 2241, as long as the person is in custody pursuant to the judgment of a state

court . . . .” (citation and quotation marks omitted) (emphasis in original)); Medberry v. Crosby, 351

F.3d 1049, 1060 (11th Cir. 2003) (“Section 2254(a) is more in the nature of a limitation on authority

than a grant of authority. . . . [It] merely specifies the class of state prisoners to which the additional

restrictions of § 2254 apply. In sum, § 2254 is not an independent and additional post-conviction

remedy for state prisoners; there is but a single remedy, the writ of habeas corpus.”).


        On the other hand, § 2255 governs collateral attacks by federal prisoners (“prisoner[s] in

custody under sentence of a court established by Act of Congress”) seeking to be released on the

ground that “the[ir] sentence was imposed” unlawfully.1 It does not apply to state prisoners, or to


        1
        In rare cases where § 2255 is “inadequate or ineffective to test the legality of [a prisoner’s]
detention” a federal prisoner may challenge the imposition of his conviction or sentence under §
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federal prisoners challenging the execution of their sentences—i.e., the manner in which their

sentences are served. Federal prisoners who wish to collaterally challenge the execution of their

sentences must petition for relief under § 2241.


        The same is not true of state prisoners who proceed under § 2254, because § 2254 allows

state prisoners to collaterally attack either the imposition or the execution of their sentences. And

indeed, there exists some question whether state prisoners may ever proceed under § 2241. See

Cook v. N.Y. State Div. of Parole, 321 F.3d 274, 278 (2d Cir. 2003) (“A state prisoner such as Cook

. . . not only may, but according to the terms of section 2254 must, bring a challenge to the execution

of his or her sentence . . . under section 2254. A petition under section 2241 is therefore unavailable

to him.” (footnote omitted)). This circuit has allowed state prisoners to proceed under § 2241, but

subject to the restrictions imposed by § 2254. See Greene v. Tenn. Dep’t of Corr., 265 F.3d 369,

371 (6th Cir. 2001) (“‘[W]hen a prisoner begins in the district court, § 2254 and all associated

statutory requirements [including COA’s under § 2253, if applicable] apply no matter what statutory

label the prisoner has given the case.’” (quoting Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir.

2000) (second modification in original))); see also Peoples v. Chatman, 393 F.3d 1352, 1353 (11th

Cir. 2004) (“Because there is a single habeas corpus remedy for those imprisoned pursuant to a State

court judgment (authorized by § 2241 but subject to all of the restrictions of § 2254), and because

one of those restrictions is the one-year statute of limitations set out in § 2244(d), it follows that the




2241. U.S. v. Peterman, 249 F.3d, 458, 461 (6th Cir. 2001) (quotation marks omitted); 28 U.S.C.
§ 2255.
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 one-year statute of limitations applies to Peoples’ [§2241] petition.” (internal citations omitted)).

 We thus reject Allen’s claim of judicial error in failing to treat his § 2254 petition as one filed under

 § 2241. In light of the serious question whether a state prisoner may proceed under § 2241, there

 is no reason to think that a state prisoner (like Allen) must proceed under § 2241, or, a fortiori, that

 a court commits error by not converting a petition under § 2254 into one under § 2241. Even if

 converted, the petition would be untimely under the one-year statute of limitations, and any alleged

 error would be harmless.


                                                   B.


        We next examine the other certified issue—“whether the court applied the wrong standard

of review when determining petitioner’s habeas petition was time barred”— beginning with the

district court’s articulation of it. The section of the district court’s memorandum discussing this issue

tells us that despite employing the phrase, “standard of review,” the court refers to the legal rule that

governs the timeliness of Allen’s petition. Specifically, the court certified the question whether to

apply the one-year statute of limitations in 28 U.S.C. § 2244(d)(1) instead of the equitable principle

of laches, as the Seventh Circuit did in Cox v. McBride, 279 F.3d 492 (7th Cir. 2002).


        The most natural reading of the statute is that the one-year statute of limitations, rather than

the equitable principle of laches, governs the timeliness of Allen’s petition. Sections 2254(a) and

2244(d)(1) each concern petitions by “a person in custody pursuant to the judgment of a State court.”




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Because § 2254 governs Allen’s petition, so too should § 2244(d)(1). See Shelby v. Bartlett, 391 F.3d

1061, 1064 (9th Cir. 2004).


       Cox held otherwise. The petitioner there challenged the decision of a prison disciplinary

board revoking two years’ worth of his good-time credits. The court held that because the custody

he was challenging was “the additional two years of prison that he must serve as the result of the

‘judgment’ not of a state court but of the prison disciplinary board,” § 2244(d)(1) did not apply and

timeliness was to be judged according to the equitable principle of laches. 279 F.3d at 493. Allen

piggy-backs on this reasoning to avoid the one-year statute of limitations in this case.


       Cox, however, reasoned from a Seventh Circuit precedent that this court has refused to follow.

Walker v. O’Brien, 216 F.3d 626 (7th Cir. 2000), held that prisoners who appeal adverse decisions

in actions based on prison disciplinary proceedings do not need certificates of appealability under §

2253(c)(1)(A) because such “collateral attacks do not concern a ‘proceeding in which the detention

complained of arises out of process issued by a State court.’” Walker, 216 F.3d at 640 (dissent from

denial of rehearing en banc) (quoting 28 U.S.C. § 2253(c)(1)(A)). In Cox, one of the Walker

dissenters applied this logic to § 2244(d)(1).


       The Sixth Circuit rejected Walker’s conclusion that challenges to prison disciplinary

proceedings are exempt from § 2253(c)(1)(A)’s requirement of a certificate of appealability. Greene,

265 F.3d at 372. In Greene, as in this case, the prisoner appealed an adverse decision by the district

court in a challenge to the TDOC’s calculation of his sentencing credits. The panel followed the

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Tenth Circuit in Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000), and held § 2253(c)(1)(A)’s

requirement of a certificate of appealability applicable. Because Walker’s holding provided the only

basis for Cox’s (perhaps begrudging) conclusion that the one-year statute of limitations did not apply

to such prisoners, and because this Circuit expressly rejected Walker, we see no reason to follow

Cox.2


        We hold that the district court did not err by applying § 2244(d)(1)’s one-year statute of

limitations to Allen’s petition.


                                                  C.


        Though the parties briefed whether the district court correctly applied § 2244(d)(1)’s one-year

statute of limitations, no certification supports our review of that question.


        The analysis section of the court’s memorandum responding to Allen’s Motion to Reconsider,

Alter and Amend Judgment included four subsections, entitled, (1) “Whether the Court Erred by Not

Construing Petitioner’s § 2254 Habeas Petition as a § 2241 Habeas Petition;” (2) “Whether the Court

Applied the Wrong Standard of Review When Determining Petitioner’s Habeas Petition was Time

Barred;” (3) “Whether the Court Relied on Improper Authority to Determine the Starting Date of the

Statute of Limitations for Petitioner’s Habeas Claims;” and (4) “Whether the Court Erroneously



        2
        Cox’s holding differs from the rule in other circuits. See, e.g., Shelby v. Bartlett, 391 F.3d
1061 (9th Cir. 2004); Wade v. Robinson, 327 F.3d 328 (4th Cir. 2003); Cook, 321 F.3d 274 (2d Cir.
2003); Kimbrell v. Cockrell, 311 F.3d 361 (5th Cir. 2002).
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Refused to Consider the Cognizable Federal Claims in Petitioner’s Habeas Petition.” The court

word-for-word certified only the questions addressed in the first two subsections; the discussion of

the appropriate date to commence the statute of limitations appears only in the third. We thus, in the

absence of certification, have no warrant to consider the issue.


                                                 IV


       We affirm the judgment of the district court.




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       KAREN NELSON MOORE, Circuit Judge, concurs in the judgment only.




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