                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 8 2001
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


CHARLES ANTHONY GOLDEN,

          Petitioner-Appellant,
                                                       No. 00-6315
v.                                               (W. District of Oklahoma)
                                                 (D.C. No. 00-CV-1246-C)
STEPHEN W. KAISER,

          Respondent-Appellee.




                             ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges.


      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.




      *
       This order and judgment is not binding precedent, except under the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.
      This case is before the court on Charles Anthony Golden’s pro se request

for a certificate of appealability (“COA”). 1 Golden seeks a COA so that he can

appeal the district court’s denial of his 28 U.S.C. § 2241 petition. 2 In his § 2241

petition, Golden challenged as unconstitutional the actions of Oklahoma prison

officials in resetting his parole hearing date based on the newly-enacted Truth in

Sentencing Act. The matter was referred to a magistrate judge for initial

proceedings pursuant to 28 U.S.C. § 636(b)(1)(B). The magistrate judge issued a

comprehensive report and recommendation, concluding as follows: (1) each of

Golden’s three claims were time barred under the provisions of 28 U.S.C. §

2244(d)(1); (2) Golden had not identified any circumstances that would entitle

him to equitable tolling and no such circumstances were apparent; and (3)

Golden’s second and third claims, which claims related to alleged deficiencies in

      1
        The court also has before it Golden’s omnibus request that the appellate
filing fee be refunded and that he be allowed to proceed in forma pauperis. After
the district court denied Golden’s request to proceed in forma pauperis on appeal,
Golden simply paid the filing fee in full. Golden then filed in this court a motion
requesting that this court order the district court to refund the fee. Golden has not
identified any precedent supporting such a request and this court has not
discovered any. Accordingly, Golden’s request that this court order the district
court to refund the appellate filing fee is DENIED. His request to proceed in
forma pauperis is DENIED as moot.
      2
        Although Golden identified 28 U.S.C. § 2254 as the appropriate statutory
basis for his habeas corpus petition, the district court correctly noted that the
petition was actually brought pursuant to 28 U.S.C. § 2241. This is so because
the petition attacks the execution of Golden’s sentence rather than the validity of
his conviction. See Montez v. McKinna, 208 F.3d 862, 864-65 (10th Cir. 2000)
(discussing distinction between § 2241 and § 2254 petitions).

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Oklahoma’s post-conviction procedures, failed to present a viable habeas claim,

see Sellers v. Ward, 135 F.3d 1333, 1336 (10th Cir.), cert. denied, 525 U.S. 1024

(1998). Upon de novo review, the district court adopted the report and

recommendation and dismissed Golden’s petition with prejudice.

       Golden is entitled to a COA only upon making a “substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(b)(2). He can make this

showing by demonstrating that the issues raised are debatable among jurists, a

court could resolve the issues differently, or that the questions presented deserve

further proceedings. See Slack v. McDaniel, 120 S. Ct. 1595, 1603-04 (2000).

This court has reviewed Golden’s request for a COA and accompanying brief and

has conducted a de novo review of the magistrate judge’s report and

recommendation, the district court’s order, and the entire record on appeal. That

close review reveals that the district court’s resolution of Golden’s petition is not

debatable or deserving of further proceedings. Accordingly, this court DENIES

Golden’s request for a COA for substantially those reasons set forth in the

magistrate judge’s report and recommendation dated August 15, 2000, and the

district court’s order dated August 31, 2000. Golden’s appeal is, therefore,

DISMISSED. See 28 U.S.C. § 2253(c).

                                                ENTERED FOR THE COURT:

                                                Michael R. Murphy
                                                Circuit Judge

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