                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                       October 16, 2014

                                                                     Elisabeth A. Shumaker
                                                                         Clerk of Court
JEWEL WESLEY GIST,

             Petitioner - Appellant,

v.                                                        No. 14-5007
                                              (D.C. No. 4:13-CV-00083-JED-TLW)
EDWARD EVANS, Interim Director,                           (N.D. Okla.)
Oklahoma Department of Corrections,

             Respondent - Appellee.


          ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.


      Jewel Wesley Gist, an Oklahoma state prisoner proceeding pro se, seeks a

Certificate of Appealability (“COA”) in order to appeal the dismissal of his 28 U.S.C.

§ 2254 habeas petition. Exercising our jurisdiction under 28 U.S.C. §§ 1291 and

2253(a), we deny Mr. Gist a COA and dismiss the matter.

                                   I.     Background

      On August 6, 2001, Mr. Gist was convicted in Oklahoma state court on his

pleas of guilty to larceny of an automobile, and second-degree burglary. He was


*
       This order is not binding precedent, except under the doctrines of law of the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.
sentenced that day to a twenty-year term of imprisonment on each count, to be served

concurrently, with ten years suspended. Mr. Gist did not file an application to

withdraw his guilty pleas or otherwise directly appeal his convictions to the

Oklahoma Court of Criminal Appeals (“OCCA”). See Rule 4.2, Rules of the

Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18, App. (requiring a

defendant to file an application to withdraw a guilty plea within ten days from the

pronouncement of the Judgment and Sentence in order to appeal from any conviction

on a plea of guilty).

       Beginning in July 2003 and continuing through December 2006, Mr. Gist filed

multiple post-conviction applications for relief in Oklahoma state district court, but

all were denied. In his third application for post-conviction relief, filed in February

2006, Mr. Gist sought to withdraw his guilty pleas. He argued for the first time that

his ten-year suspended sentence was an “illegal” sentence under Okla. Stat. tit. 22,

§ 991a(C) (1995) and Bumpus v. State, 925 P.2d 1208 (Okla. Crim. App. 1996),

because he had multiple prior felony convictions that made him ineligible for a

suspended sentence. R. at 18. The state district court denied relief, and Mr. Gist’s

appeal from this denial to the OCCA was dismissed as untimely. Mr. Gist raised

unsuccessfully the issue of his allegedly illegal suspended sentence in later

applications for post-conviction relief filed in September and December 2006, and he

did not appeal from these orders to the OCCA.




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      In July 2010, after Mr. Gist’s release from prison in January 2010 on

probation, the State filed an application to revoke Mr. Gist’s suspended sentence,

arguing that he had violated the terms of his probation. The state district court held

hearings on the matter, at which time Mr. Gist again raised the issue of an illegal

suspended sentence. Even so, he declined to seek to withdraw his guilty pleas. In

June 2011, the state district court granted the State’s application to revoke and

revoked five years of Mr. Gist’s ten-year suspended sentence. Mr. Gist appealed the

revocation order to the OCCA, and it affirmed.

      On February 18, 2013, in the United States District Court for the Northern

District of Oklahoma, Mr. Gist filed a pro se federal habeas petition under 28 U.S.C.

§ 2254. He argued that revoking his suspended sentence violated his right to due

process of law because the state district court lacked jurisdiction under Oklahoma

state law to suspend a portion of his original sentence and, therefore, the suspended

sentence was “[v]oidable at its inception,” R. at 24. He further argued that he had

received ineffective assistance of counsel at both the trial and appellate levels. He

also claimed that he did not receive a fair and impartial revocation hearing. The

State moved to dismiss Mr. Gist’s petition as time-barred by the one-year statute of

limitations under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”). The district court found the petition untimely under 28 U.S.C.

§ 2244(d), dismissed it, and denied a COA. Mr. Gist now seeks a COA from this

court on the same grounds raised in his § 2254 petition.


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                                     II.    Discussion

      Before Mr. Gist can challenge the district court’s dismissal of his habeas

petition, he must first obtain a COA. See Miller-El v. Cockrell, 537 U.S. 322, 335-36

(2003); 28 U.S.C. § 2253(c)(1)(A). The granting of a COA is a jurisdictional

prerequisite to his appeal. See Miller-El, 537 U.S. at 336. We will only issue a COA

upon “a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). When, as here, a 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 . . . 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). We

review a district court’s denial of a habeas petition based on 28 U.S.C. § 2244(d)

de novo. See Fleming v. Evans, 481 F.3d 1249, 1254 (10th Cir. 2007). We liberally

construe Mr. Gist’s pro se request for a COA. See Hall v. Scott, 292 F.3d 1264, 1266

(10th Cir. 2002).

      The AEDPA governs Mr. Gist’s petition. It establishes a one-year limitations

period for state prisoners to seek federal habeas relief. See 28 U.S.C. § 2244(d)(1).

Generally, the limitations period runs from the date on which the state judgment

became final after direct appeal or the expiration of the time for seeking such review.

See id. § 2244(d)(1)(A). The statute delays commencement of the limitations period


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when (1) state action unlawfully impeded the prisoner from filing his habeas

application; (2) the prisoner asserts a constitutional right newly recognized by the

Supreme Court and made retroactive on collateral review; or (3) the factual predicate

for the prisoner’s claim could not previously have been discovered through due

diligence. See id. § 2244(d)(1)(B)-(D). It also tolls the limitations period during

the pendency of a properly filed application for state collateral relief. See id.

§ 2244(d)(2).

      The district court determined that because Mr. Gist did not move to withdraw

his guilty pleas in order to commence a direct appeal from his convictions, his

convictions became final on August 16, 2001, ten days after entry of his Judgment

and Sentence. See Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals,

Okla. Stat. tit. 22, Ch. 18, App. It observed, and we agree, that in his habeas petition

Mr. Gist does not challenge the revocation of his suspended sentence, but instead

challenges the imposition of the suspended sentence as part of his original sentence

in 2001. Accordingly, the AEDPA one-year limitations period began to run on

August 17, 2001. The district court found that to be timely, Mr. Gist needed to have

filed his habeas petition by August 19, 2002.1 See United States v. Hurst, 322 F.3d

1256, 1259-61 (10th Cir. 2003) (providing that AEDPA one-year limitations period is

calculated by the anniversary method). It further found that his applications for
1
       Because August 17, 2002, fell on a Saturday, Mr. Gist’s deadline for filing a
federal habeas petition was Monday, August 19, 2002. See Fed. R. Civ. P.
6(a)(3)(A).


                                          -5-
post-conviction relief in state court did not toll the limitations period, see 28 U.S.C.

§ 2244(d)(2), because these applications were all filed after expiration of the

one-year limitations period. See Fisher v. Gibson, 262 F.3d 1135, 1142-43 (10th Cir.

2001). The district court concluded that Mr. Gist’s habeas petition, filed on

February 18, 2013, was therefore untimely. It also found that Mr. Gist made no

argument that he was entitled to equitable tolling.

      In his Combined Opening Brief and Application for Certificate of

Appealability, Mr. Gist does not demonstrate that the dismissal of his habeas petition

as untimely is debatable. Indeed, he does not address the untimeliness of his petition

at all. Nevertheless, we examine the question but conclude that jurists of reason

could not debate the correctness of the district court’s procedural ruling finding

Mr. Gist’s habeas petition untimely under § 2244(d). See Slack, 529 U.S. at 484. We

thus need not reach the question whether jurists of reason could debate whether

Mr. Gist’s petition states a valid constitutional claim. We note, however, that

although Mr. Gist identifies the issue of his allegedly illegal suspended sentence as a

“due process” violation, the claim amounts to a challenge of a pure issue of state law

and, therefore, cannot be the basis of federal habeas relief. See Johnson v. Mullin,

505 F.3d 1128, 1141 (10th Cir. 2007) (“[I]t is not the province of a federal habeas

court to reexamine state court determinations on state-law questions.” (internal

quotation marks omitted)); Turrentine v. Mullin, 390 F.3d 1181, 1195-96 (10th Cir.

2004) (“[A] federal court under § 2254 may not grant relief unless there was an error


                                          -6-
of federal law, in other words, unless this error amounted to a violation of the federal

constitution.”).2

                                    III.   Conclusion

       For the foregoing reasons, we deny Mr. Gist’s request for a COA and dismiss

this matter. We deny as moot Mr. Gist’s motion for release from incarceration

pending appeal.


                                                 Entered for the Court



                                                 ELISABETH A. SHUMAKER, Clerk




2
        In his appeal from the state district court’s revocation order, the OCCA
rejected Mr. Gist’s claim that his suspended sentence was illegal under Oklahoma
state law. See R. at 144, 147-49. As noted, however, we will not review issues of
purely state law on federal habeas review.


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