                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 16, 2013
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 RAYMOND H. GRUZINSKY,

               Petitioner - Appellant,                   No. 12-5179
          v.                                          (N.D. Oklahoma)
 TERRY MARTIN, Warden,                      (D.C. No. 4:12-CV-00053-TCK-PJC)

               Respondent - Appellee.


                              ORDER DENYING
                       CERTIFICATE OF APPEALABILITY *


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.




      Raymond H. Gruzinsky, proceeding pro se, seeks a certificate of

appealability (“COA”) in order to appeal the dismissal of his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241. We deny Mr. Gruzinsky a COA and

dismiss this matter.




      *
       This order is not binding precedent, except under the doctrines of law of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.
                                BACKGROUND

      It appears that Mr. Gruzinsky was initially taken into custody by Oklahoma

County officials on February 12, 2009, pursuant to a bench warrant which was

issued following an application to revoke Mr. Gruzinsky’s suspended three-year

sentence in Oklahoma County District Court Case No. CF-2000-5529 (“Okla.

County Case”). He was placed in the custody of the Oklahoma Department of

Corrections (“ODOC”) on May 26, 2009, to serve that now-revoked three-year

suspended sentence.

      Subsequently, on January 8, 2010, Mr. Gruzinsky received a four-year

sentence in Logan County District Court Case No. CF-2008-127 (“Logan County

Case”), to be served concurrently with the three-year sentence imposed in the

Okla. County Case. 1 Mr. Gruzinsky discharged his sentence in the Okla. County

Case on October 22, 2010, and he discharged his sentence in the Logan County

Case on November 7, 2011.




      1
        We note, without comment on its merits or its impact, if any, on Mr.
Gruzinsky’s arguments about his state sentences, that the Oklahoma County
district court stated in the denial of Mr. Gruzinsky’s petition for a mandamus in
Case No. CV-2010-1116 that “the Logan County Court improperly ordered that
Petitioner be awarded credit against his Logan County conviction for time served
in Oklahoma County jail for his revoked Oklahoma County conviction. DOC
Sentence Administrator Jim Rabon recognized that the portion of the Logan
County Judgment and Sentence awarding Petitioner credit for jail time served on
an Oklahoma County case was improper.” Order at 2 (attached to 28 U.S.C.
§ 2241 petition).

                                       -2-
      Meanwhile, on June 7, 2010, Mr. Gruzinsky pled guilty to aggravated

assault and battery, after former convictions for two or more felonies. He was

sentenced to thirty years’ imprisonment, with all but the first fifteen years

suspended. He began serving his sentence on that case on November 7, 2011.

That is the case for which Mr. Gruzinsky is currently in custody. Mr. Gruzinsky

did not appeal that sentence.

      Additionally, while in custody for the two earlier state sentences (the Okla.

and Logan County Cases), Mr. Gruzinsky, on February 23, 2010, filed a request

to prison staff regarding his sentences. He then filed an administrative grievance.

After the denial of relief, Mr. Gruzinsky appealed that denial, but his

administrative appeal was returned unanswered as untimely.

      On September 7, 2010, Mr. Gruzinsky filed a petition for a writ of

mandamus in the Oklahoma County District Court, assigned Case No. CV-10-

1116. The court denied relief on March 4, 2011. Mr. Gruzinsky appealed that

denial to the Oklahoma Court of Criminal Appeals (“OCCA”). On May 13, 2011

(in Case No. MA-2011-215), the OCCA cited the Oklahoma Court of Criminal

Appeals Rules 10.1(C)(2) and 10.5(5) to deny mandamus relief, finding that

because Mr. Gruzinsky had failed to provide a copy of either his petition as filed

in the district court or a copy of the response filed by the state, the OCCA was

“unable to determine if the District Court improperly denied Petitioner a writ of

mandamus and whether this Court should now grant him the writ.” Mr.

                                          -3-
Gruzinsky thereafter filed a petition on May 5, 2011, in the Oklahoma Supreme

Court, Case No. 109,431, which was transferred to the OCCA where, on

January 25, 2012, the OCCA cited Rule 10.1(C) to decline jurisdiction and

dismiss the matter as untimely. 2



      2
        While the federal district court did not mention them, there were other
state court proceedings involving Mr. Gruzinsky. According to an order of the
OCCA, recently filed with this court, on October 28, 2010, Mr. Gruzinsky filed a
“Request for Order Nunc Pro Tunc,” alleging, inter alia, that the order of
judgment and sentence in his case failed to stipulate that he was to receive credit
for time served and that his sentence was to be served concurrently with the
sentences imposed in the other state court cases (the Okla. and Logan County
cases). In a decision announced by court minute entry on December 10, 2010,
and memorialized in an order filed on December 30, 2010, the state court judge
denied Mr. Gruzinsky’s request for an order “Nunc pro Tunc.” It appears that
Mr. Gruzinsky was not present during the proceedings.
       On March 24, 2011, Mr. Gruzinsky filed another “Motion for Order Nunc
Pro Tunc” again requesting the correction of his judgment and sentence because it
did not “properly reflect the terms of the plea agreement” relating to concurrent
sentences and time served. A different state court judge denied this motion on
June 17, 2011.
       Mr. Gruzinsky was able to establish, however, that he did not receive
notice of this last order denying his motion within thirty days of its issuance, as
required. The OCCA then gave Mr. Gruzinsky “leave to commence out of time in
this Court such original or appellate proceedings that might properly lie in
challenge or review of that written order filed on June 17, 2011.” Order Issuing
Writ of Mandamus at 2 (quoting Gruzinsky v. State, No. PC-2011-1023 at 4
(Okla. Crim. App. April 6, 2012) (unpublished)). In accordance with that April 6
order, Mr. Gruzinsky filed, on May 7, 2012, a “Petition in Error” and a “Brief in
Support of Petition in Error,” raising a number of challenges to the proceedings
leading up to his conviction. The OCCA construed that petition as an original
proceeding for a writ of mandamus, and ultimately granted that writ, permitting
Mr. Gruzinsky to proceed with his request for an order “Nunc Pro Tunc,” and
directed the lower court to consider that issue on its merits. Our record contains
no information about the current status, if any, of any proceedings relating to this
last directive.

                                        -4-
      Mr. Gruzinsky filed the instant 28 U.S.C. § 2241 on February 8, 2012. He

claimed that the ODOC officials failed to administer his sentence in the Logan

County case concurrently with his sentence in the Okla. County case: “The

Oklahoma Department of Corrections is refusing to administer the sentence in

Logan County Case No. CF-2008-127 in the manner proscribed [sic] on the

Judgment and Sentence, in violation of Petitioner’s Fourteenth Amendment right

to due process.” Petition at 3.

      In response, the Warden filed a motion to dismiss, arguing that the petition

failed to state a claim upon which relief may be granted and that, even if it stated

a cognizable constitutional violation, the petition would be procedurally barred.

      The district court dismissed the petition, concluding that the petition

concerned the application of state law only and, as such, did not involve the

denial of a constitutionally protected right. The court also determined,

alternatively, that the petition was procedurally barred. The district court then:

denied Mr. Gruzinsky’s motion for reconsideration; denied his request for a COA;

and granted his request to proceed in forma pauperis.




                                         -5-
                                   DISCUSSION

      Pursuant to 28 U.S.C. § 2253(c)(2), a prisoner seeking a COA must make a

“substantial showing of the denial of a constitutional right.” Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). He may do so by “showing that reasonable

jurists could debate whether . . . the petition should have been resolved in a

different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484

(2000); United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012). Thus,

when the district court has ruled on the merits of the prisoner’s claims, he must

show that “reasonable jurists could find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. Where the

district court ruled on procedural grounds, a COA may be granted when the

petitioner shows “that jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right and . . . whether

the district court was correct in its procedural ruling.” Id.

      The district court’s decision was thorough and precise. We cannot improve

on its analysis. Accordingly, for substantially the reasons set forth in that

decision, we agree that a COA should not issue and this matter should be

dismissed.




                                          -6-
                                CONCLUSION

      For the foregoing reasons, we DENY a COA and DISMISS this matter. 3

                                             ENTERED FOR THE COURT


                                             Stephen H. Anderson
                                             Circuit Judge




      3
      Appellant’s section motion titled, “Request for Interventionism for Court
Imposed Rules” is denied.

                                       -7-
