                                                                               F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                                AUG 10 2001
                            FOR THE TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

    JAMES H. TRACY,

                Petitioner-Appellant,

    v.                                                     No. 00-6452
                                                    (D.C. No. 00-CV-1665-M)
    MIKE ADDISON, Warden,                                  (W.D. Okla)

                Respondent-Appellee.


                             ORDER AND JUDGMENT             *




Before EBEL , PORFILIO, and KELLY , Circuit Judges.



         Petitioner appeals the district court’s order dismissing without prejudice his

ex post facto challenge to the cessation of his “CAP” credits under the Oklahoma

Prison Overcrowding Act, Okla. Stat. Tit. 57, §§ 570-576.       1
                                                                    The district court

held that because the claim challenged only the execution of petitioner’s sentence,


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
he should have brought it under § 28 U.S.C. § 2241, rather than under 28 U.S.C.

§ 2254. See, e.g. , McIntosh v. United States Parole Comm’n       , 115 F.3d 809, 811

(10th Cir. 1997). Petitioner argues on appeal that his claim for CAP credits was

properly brought under § 2254 and, therefore, that the district court erred in

determining that it should have been filed under § 2241 and in dismissing it.     2



       Before petitioner can proceed on appeal, he must obtain a certificate of

appealability (“COA”) from this court. 28 U.S.C. § 2253(c)(1)(A);          Montez v.

McKinna , 208 F.3d 862, 869 (10th Cir. 2000) (holding that § 2253(c)(1)(A)

requires a state prisoner to obtain a COA regardless of whether he is seeking

relief under § 2254 or under § 2241). Because the district court denied

petitioner’s habeas petition on procedural grounds, it did not reach his underlying

constitutional claims. Under these circumstances, petitioner is not entitled to a

COA unless he can show, “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).

       In the district court, the magistrate judge determined that petitioner’s claim

for CAP credits should have been brought under § 2241, and, therefore,


2
       The district court also determined that three other claims were properly
brought under § 2254, but that they were untimely. Petitioner does not challenge
the district court’s dismissal of these three claims on appeal.

                                            -2-
recommended that the claim be dismissed without prejudice. In a lengthy

footnote, the magistrate judge noted that this claim was likely untimely, too,

based on facts contained in the record of a related civil rights action brought by

petitioner with regard to the CAP credits.

      Petitioner filed objections to the magistrate judge’s report in which he

acceded to the dismissal of his three § 2254 claims, but requested that the court

construe his CAP credit claim as one under § 2241 and decide it on the merits.

He argued that equitable tolling would apply to make this claim timely. Several

days later, petitioner submitted amended objections, in which he argued that this

court had granted habeas relief under § 2254 in cases involving similar types of

credits and, therefore, that the district court could properly decide his claim under

§ 2254. After receiving petitioner’s initial objections, but before receiving his

amended ones, the district court entered an order adopting the report and

recommendation of the magistrate judge and dismissing petitioner’s CAP credit

claim without prejudice. This appeal followed.

      In ruling on petitioner’s request for COA, we would normally consider

whether reasonable jurists would find it debatable whether the district court

correctly determined that petitioner’s claim should have been brought under

§ 2241, or whether the district court correctly refused petitioner’s request to

construe the claim as one under § 2241 rather than require him to refile the


                                         -3-
claim. 3 We need not reach these issues, however, because the records before us

establish that COA is not warranted in any event as petitioner’s CAP credit claim

is untimely.

       As did the magistrate judge, we take judicial notice of the record in the

related civil rights action,   Tracy v. Keating , Dist. Ct. No. 00-CV-1324, which is

now pending before us on appeal in No. 01-6057. The records before us establish

that Governor Keating declared an overcrowding emergency in May 1989, prior to

petitioner’s incarceration. Beginning in July 1994, when petitioner was moved to

a security level at which he could obtain the resulting CAP credits, petitioner

began accruing the credits regularly. Between November 1997 and November

1998, petitioner accrued the credits every sixty days. In October 1998, the Board

of Corrections changed the way it calculated the legal capacity of the system.

(This is the action that petitioner contends violates the Ex Post Facto Clause.)



3
       We note that by requiring petitioner to refile a § 2241 petition, rather than
simply construing that part of his § 2254 petition as one filed under § 2241, the
district court potentially disadvantaged petitioner. The Supreme Court has held
that the pendency of a federal habeas action will not toll the statute of limitations
under 28 U.S.C. § 2244(d)(2).    Duncan v. Walker , 121 S. Ct. 2120, 2129 (2001).
Therefore, requiring a petitioner who has erroneously asserted a § 2241 claim in a
§ 2254 proceeding to actually refile the claim under § 2241 may put the petitioner
in the position of having to refile a claim that has become untimely during the
pendency of the action. Assuming there are no counterveiling successiveness
problems, the better practice would to be to construe the misnamed § 2254 claim
as one under § 2241, at least where the petitioner has specifically requested that
the court do so.

                                            -4-
As a result, the Board certified to the governor that there was no longer an

overcrowding emergency. By order of November 23, 1998, Governor Keating

declared that the overcrowding emergency was over, and petitioner has not

received any CAP credits since November 1998.

      Pursuant to 28 U.S.C. § 2244(d)(1)(D), petitioner had one year from “the

date on which the factual predicate of the claim or claims presented could have

been discovered through the exercise of due diligence” to file his federal habeas

petition. Petitioner could have discovered as early as January 1999, sixty days

after he last received CAP credits, that he was no longer receiving the credits.

Petitioner did not file the current habeas action until September 11, 2000, well

over a year after he could have discovered that his CAP credits had ceased.

Therefore, regardless of whether his habeas petition is treated as one under

§ 2241 or one under § 2254, it is untimely. Accordingly, petitioner cannot make

the showing necessary to obtain a certificate of appealability with regard to his

CAP credit claim.   4




4
       Petitioner claimed for the first time in his objections to the magistrate
judge’s report that Governor Keating also violated his rights when he refused to
sign an order in July 2000 declaring an overcrowding state of emergency, despite
the Board of Corrections having certified that there was a new overcrowding
emergency. We will not consider this claim, because “[i]ssues raised for the first
time in objections to the magistrate judge's recommendation are deemed waived,”
Marshall v. Chater , 75 F.3d 1421, 1426 (10th Cir. 1996).


                                         -5-
      Petitioner’s motion to proceed in forma pauperis is GRANTED, petitioner’s

motion for a certificate of appealability is DENIED, and this appeal is

DISMISSED.

                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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