                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                            APR 4 2002
                                  TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 VEAR L. BROOKS,

               Petitioner - Appellant,                  No. 01-4227
          v.                                      (D.C. No. 01-CV-456-S)
 STATE OF UTAH, UTAH BOARD                                  (D. Utah)
 OF PARDONS, and JIM SMITH,
 Warden,

               Respondents - Appellees.


                             ORDER AND JUDGMENT         *




Before SEYMOUR , HENRY , and BRISCOE , 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). The case is, therefore, ordered

submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
       Vear Brooks, a state prisoner proceeding pro se, requests a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2254 habeas corpus

petition. The record appears to indicate that Mr. Brooks was convicted in Utah

state court of two counts of attempted sexual abuse of a child. According to Mr.

Brooks’s habeas petition, the state district court entered its judgment of

conviction against him on October 21, 1994. Mr. Brooks avers that he did not

directly appeal his conviction, but it appears that he filed state postconviction

petitions in 1995, 1999, and 2000.

       Because Mr. Brooks’s conviction appears to have become final before

Congress passed the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), he had to file his federal habeas petition within one year of April 24,

1996 for that petition to be timely.   See 28 U.S.C. § 2244(d); Gibson v. Klinger ,

232 F.3d 799, 803, 808 (10th Cir. 2000). In order to determine whether Mr.

Brooks’s § 2254 petition was filed within the one-year time period, the district

court ordered Mr. Brooks to submit a letter specifying (1) when he filed his state

court post-conviction petition(s) and (2) how and when the state district court, the

Utah Court of Appeals, and/or the Utah Supreme Court ruled upon those state

court post-conviction petition(s). The district court advised Mr. Brooks that

failure to supply such information within thirty days would result in dismissal of




                                           -2-
Mr. Brooks’s petition. Mr. Brooks did not submit any information and the district

court subsequently dismissed his petition.

      While a district court can grant a COA, the district court did not do so in

this case. Since the district court did not address the issue, a COA is deemed

denied. See Tenth Circuit Emergency General Order of Oct. 1, 1996. Thus, this

Court must grant a COA in order to address the merits of Mr. Brooks’s claims.

      To be entitled to a COA, Mr. Brooks must make a “substantial showing of

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

showing by demonstrating that the issues he raises are debatable among jurists,

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

deserve further proceedings.   See Slack v. McDaniel , 529 U.S. 473, 483-84

(2000). Because he is proceeding pro se, we construe Mr. Brooks’s allegations

liberally. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam).

      We note that Mr. Brooks’s petition in part challenges his sentence as

“indeterminate” in violation of his right to due process and his right to be free

from cruel and unusual punishment.    See Rec. doc. 3, at 5-6 (§ 2254 Petition,

filed June 22, 2001). He also appears to be challenging the execution of his

sentence as unlawful, which might properly state a claim under § 2241 of

AEDPA. Irrespective of whether his original petition was actually filed pursuant

to § 2241 or § 2254, Mr. Brooks, because he is a state prisoner, needs a COA in


                                          -3-
order to appeal the denial of his habeas petition in the district court.      See Montez

v. McKinna , 208 F.3d 862, 868-69 (10th Cir. 2000). Additionally, claims brought

pursuant to 28 U.S.C. § 2241 are subject to the same one-year statute of

limitations as are claims brought pursuant to § 2254.        See § 2244(d).

       We have reviewed Mr. Brooks’s brief, the district court’s orders, and the

entire record on appeal. Because Mr. Brooks failed to respond to the district

court’s order for a follow-up letter to clarify the timeliness of his § 2254 petition,

the district court’s dismissal of his petition was correct. When, as here, a claim is

denied on procedural grounds without reaching the merits of the underlying

constitutional claim, a COA should issue only if the petitioner shows that “jurists

of reason would find it debatable whether the district court was correct in its

procedural ruling.”    Slack , 529 U.S. at 484. Mr. Brooks has made no such

showing, and we therefore deny his request for a COA on this claim.

       We DENY the request for a COA and DISMISS the appeal.

                                                    Entered for the Court,



                                                    Robert H. Henry
                                                    Circuit Judge




                                              -4-
