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

                              TENTH CIRCUIT                          June 16, 2016

                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
    MADYUN ABDULHASEEB, a/k/a
    Jerry L. Thomas,

               Petitioner - Appellant,
    v.                                                  No. 16-6053
                                              (D.C. No. 5:15-CV-01113-W)
                                                        (W.D. Okla.)
    JOE M. ALLBAUGH, Interim
    Director, Oklahoma Department of
    Corrections,

               Respondent - Appellee.


                                    ORDER


Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.



         Mr. Madyun Abdulhaseeb was convicted on state charges and is

serving his sentence in Oklahoma. Challenging the execution of his

sentence, Mr. Abdulhaseeb has brought four habeas claims under 28

U.S.C. § 2241:

         1.   improper denial of achievement credits,

         2.   improper denial of credits for blood donations, 1


1
         See note 2, below.
      3.    improper denial of credits for his incarceration in private
            prisons, and

      4.    loss of the state department of corrections’ jurisdiction over
            the sentences based on enactment of the Oklahoma Truth in
            Sentencing Act.

The federal district court dismissed the first two claims as time-barred,

dismissed the third claim as unexhausted (or, in the alternative, as time-

barred), and denied relief on the fourth claim.

      Mr. Abdulhaseeb seeks leave to proceed in forma pauperis and a

certificate of appealability so that he can appeal the dismissal of his

habeas petition. Because Mr. Abdulhaseeb has not met the standard for a

certificate of appealability, we dismiss the appeal and deny Mr.

Abdulhaseeb’s request for leave to appeal in forma pauperis.

I.    Denial of a Certificate of Appealability

      To appeal, Mr. Abdulhaseeb needs a certificate of appealability. 28

U.S.C. § 2253(c)(1)(A). To obtain the certificate, Mr. Abdulhaseeb must

make “a substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). This showing is made only if reasonable jurists could

characterize the district court’s rulings as debatable or wrong. Slack v.

McDaniel, 529 U.S. 473, 484 (2000).

II.   Challenges to the Individual Claims

      In part, Mr. Abdulhaseeb argues that the district court improperly

rejected each of his claims. These arguments are not reasonably debatable.


                                      2
      In his first claim, Mr. Abdulhaseeb contends that ODOC policy OP-

060211(II)(E)(5)(C) should retroactively apply to his sentences between

1982 and 2014. The district court rejected this contention, and this part of

the ruling is not subject to reasonable debate.

      Mr. Abdulhaseeb’s argument is based on the state department of

corrections’ policy OP-060211(II)(E)(5(c), which states: “Effective July

1, 2014, beginning upon reception, all eligible offenders to include those

currently incarcerated, will be awarded 15 achievement credits every

month of continued good conduct.” Doc. 12-5 at 175. Mr. Abdulhaseeb

argues that the phrase “beginning upon reception” requires a retroactive

award of credits for the 32 years he spent in prison prior to the effective

date of the policy. This interpretation is not reasonable. In Oklahoma,

courts apply changes in the law “prospectively from their effective date”

in the absence of an express statement that the change is to apply

retroactively. State v. Salathiel, 313 P.3d 263, 266-67 (Okla. Crim. App.

2013). In applying Oklahoma law, no reasonable jurist could interpret the

2014 policy as a directive for prison authorities to add credits for each of

Mr. Abdulhaseeb’s prior 32 years in prison.

      On appeal, Mr. Abdulhaseeb also alleges that the denial of

achievement credits (before 2014) constituted a violation of the Ex Post

Facto Clause. But this allegation did not appear in the habeas petition. As

a result, no reasonable jurist would regard this allegation as a basis for

                                      3
reversal. See Jones v. Gibson, 206 F.3d 946, 958 (10th Cir. 2000)

(declining to consider a claim omitted in the habeas petition).

      Mr. Abdulhaseeb also contends that he was entitled to credits for

past blood donations. 2 The district court concluded that this claim is time-

barred. In our view, this conclusion is not subject to reasonable debate.

      A one-year limitations period applies to state prisoners who petition

for a writ of habeas corpus. 28 U.S.C. § 2244(d)(1). The limitations period

begins to run when “the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.” 28

U.S.C. § 2244(d)(1)(D).

      The department of corrections stopped awarding credits for blood

donations in 1988. ODOC Policy OP-060211, Section II.L.5. That

development was not a secret, for Oklahoma requires that inmates receive

a monthly accounting of sentence credits. Okla. Stat. tit. 57, § 138.

Therefore, Mr. Abdulhaseeb could easily have discovered the “factual

predicate” for his claim in 1988 or soon thereafter. In these circumstances,

jurists could not reasonably question the district court’s application of the

time bar to deny relief to Mr. Abdulhaseeb on his claim involving credit

for donations of blood.




2
      Mr. Abdulhaseeb included this allegation as part of his first claim.
For clarity, we refer to this claim as the second claim.
                                      4
      On appeal, Mr. Abdulhaseeb contends that the factual predicate did

not become discoverable until the decision on his administrative appeal.

In some circumstances, we have held that the factual predicate of a claim

does not become discoverable until the petitioner’s administrative appeal

becomes final. Dulworth v. Evans, 442 F.3d 1265, 1268-69 (10th Cir.

2006). But this is true only when the petitioner “timely and diligently

exhausts his administrative remedies.” Id. at 1268. In our view, no

reasonable jurist could regard Mr. Abdulhaseeb as diligent in bringing the

administrative action: He did not initiate the administrative action until he

had received monthly reports for over 20 years that showed no credits for

blood donations.

      According to Mr. Abdulhaseeb, “[h]e is not responsible for the

execution of his own sentences.” Appellant’s Opening Br. at 12. While

this may be true, federal law starts the one-year period of limitations as

soon as Mr. Abdulhaseeb reasonably could have discovered the absence of

credits. 28 U.S.C. § 2244(d)(1)(D). He does not suggest any reason to

question his ability to timely learn of the termination of blood-donation

credits in 1988 or soon thereafter. As a result, jurists could not reasonably

debate the district court’s conclusion that this claim is time-barred.

      In his third claim, Mr. Abdulhaseeb contends that he was improperly

denied sentence credits for the time he spent in private prisons. Mr.

Abdulhaseeb filed a grievance on November 14, 2014, asserting that he

                                      5
was entitled to credits for his time served in private prisons beginning in

1999.

        Mr. Abdulhaseeb would have known the “factual predicate” of his

claim in 1999 after receiving his monthly accounting of sentence credits.

Thus, he had to file a habeas claim on this issue by 2000. Instead, he

waited until 2014 to file his grievance and 2015 to file the habeas claim.

Accordingly, the district court’s ruling on this claim is not reasonably

debatable.

        In his fourth claim, Mr. Abdulhaseeb contends that the state

department of corrections “lost jurisdiction” over his sentences when the

Oklahoma legislature passed the Oklahoma Truth in Sentencing Act. But

because the state statute was repealed one day before it was to go into

effect, the statute “did not create any federal constitutional claims for

those seeking habeas relief.” Collins v. Workman, 125 F. App'x 246, 248

(10th Cir. 2005). 3 Thus, the district court’s ruling on this claim is not

reasonably debatable.

III.    Challenges to the District Court’s “Hybrid Disposition”

        The magistrate judge recommended dismissal of some of Mr.

Abdulhaseeb’s claims based on nonexhaustion or timeliness. On other

3
      Mr. Abdulhaseeb argues: “While the Truth in Sentencing Act may
have been repealed one day before it became effective, it actually, in fact,
de facto, became the common law practice in 1997.” Appellant’s Opening
Br. at 22. Mr. Abdulhaseeb fails to provide any explanation or authority
for this proposition.
                                       6
claims, the magistrate judge recommended denial on the merits. On

appeal, Mr. Abdulhaseeb argues that the district court erred by making a

“hybrid” disposition in two ways: (1) denying relief on some claims and

dismissing other claims and (2) finding some claims unexhausted and

denying relief on other claims.

     Mr. Abdulhaseeb waived both appeal points in district court. To

preserve these appeal points, Mr. Abdulhaseeb would ordinarily need to

include the same arguments in objecting to the magistrate judge’s report

and recommendation. Morales-Fernandez v. INS, 418 F.3d 1116, 1119

(10th Cir. 2005). In narrow circumstances, we sometimes excuse the

waiver in the interests of justice. In re Key Energy Resources, 230 F.3d

1197, 1199-1200 (10th Cir. 2000).

     Though the magistrate judge recommended dismissal on some claims

and denial of others, Mr. Abdulhaseeb did not object on the ground that

the recommended ruling would constitute a hybrid disposition. In

addition, the record does not reflect any cogent basis to excuse this

omission. In his report and recommendation, the magistrate judge warned

Mr. Abdulhaseeb:

     The failure to timely object to this Report and Recommendation
     would waive appellate review of the recommended ruling.
     Moore v. United States of America, 850 F.2d 656 (10th Cir.
     1991); cf. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.
     1996) (“Issues raised for the first time in objections to the
     magistrate judge’s recommendations are deemed waived.”).


                                     7
Doc. 18 at 12. Heeding this objection, Mr. Abdulhaseeb filed a thorough

objection to the magistrate judge’s report and recommendation. In this

objection, however, Mr. Abdulhaseeb did not address the hybrid nature of

the recommended rulings. In these circumstances, any reasonable jurist

would regard these challenges as waived.

                                   * * *

      In these circumstances, we deny a certificate of appealability and

dismiss the appeal.

IV.   Leave to Appeal In Forma Pauperis

      Mr. Abdulhaseeb requests leave to appeal in forma pauperis.

Because Mr. Abdulhaseeb has not presented a reasoned, non-frivolous

argument, we deny his request. See Rolland v. PrimeSource Staffing, LLC,

497 F.3d 1077, 1079 (10th Cir. 2007).

V.    Disposition

      We deny the request for a certificate of appealability, dismiss the

appeal, and deny the request for leave to appeal in forma pauperis.


                                   Entered for the Court




                                   Robert E. Bacharach
                                   Circuit Judge




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