                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          JUL 3 2001
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


BILLY G. HUNTER,

          Petitioner-Appellant,

v.
                                                        No. 01-7013
                                                 (E. District of Oklahoma)
BOBBY BOONE, Warden;
                                                  (D.C. No. 00-CV-348-S)
OKLAHOMA PARDON AND
PAROLE BOARD, a/k/a Oklahoma
Parole Revocation Authorities,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, Circuit Judges.


      After examining Petitioner’s brief and the 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 court therefore orders the case 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       This order and judgment is not binding precedent, except under the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.
       In 1978, Billy G. Hunter was convicted of first degree murder in Oklahoma

state court and sentenced to life imprisonment. Hunter was paroled in 1987 but

his parole was revoked on February 7, 1996. On June 29, 1999, more than two

years after the parole revocation, Hunter filed an application for post-conviction

relief in Oklahoma state court.

       On July 3, 2000, Hunter filed a petition for a writ of habeas corpus in the

United States District Court for the Eastern District of Oklahoma. In the petition,

Hunter claimed he was denied due process in the parole revocation proceeding.

The district court dismissed Hunter’s petition as untimely because it was filed

outside the one-year limitations period set out in 28 U.S.C. § 2244(d). The court

concluded that Hunter had failed to demonstrate any circumstances that would

support the equitable tolling of the one-year limitations period.    See Miller v.

Marr , 141 F.3d 976, 978 (10th Cir. 1998).

       Hunter now seeks a certificate of appealability (“COA”) to enable him to

appeal the district court’s denial of his habeas petition. Although Hunter filed

his petition pursuant to 28 U.S.C. § 2254, his claims present challenges to the

execution of his sentence and should have been brought pursuant to 28 U.S.C. §

2241. Thus, we construe his petition as falling under § 2241.       See Montez v.

McKinna , 208 F.3d 862, 864-65 (10th Cir. 2000) (construing a petition filed

pursuant to 28 U.S.C. § 2254 as a § 2241 petition).



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       Hunter, a state prisoner, is required to obtain a COA before he can appeal

the denial of a § 2241 petition.   See id. at 869. Hunter must make a “substantial

showing of the denial of a constitutional right” before he is entitled to a COA.

28 U.S.C. § 2253(c)(2). Hunter may make this showing by demonstrating 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 , 529 U.S. 473, 483-84 (2000).        Upon review of the relevant

case law, Hunter’s appellate brief and his application for a COA, and the entire

record on appeal, we conclude that the issues raised by Hunter are not reasonably

debatable, deserving of further proceedings, or subject to a different resolution

on appeal. Accordingly, for substantially the reasons stated by the district court

in its order dated January 8, 2001, this court     denies Hunter’s request for a COA

and dismisses this appeal.

                                           SUBMITTED FOR THE COURT



                                           Michael R. Murphy
                                           Circuit Judge




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