                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                       December 13, 2005
                                TENTH CIRCUIT
                                                                          Clerk of Court


NICHOLAS F. WORCESTER,

       Petitioner-Appellant,
                                                        No. 05-6157
v.                                             (Western District of Oklahoma)
                                                 (D.C. No. 05-CV-258-C)
WALTER DINWIDDIE,

       Respondent-Appellee.




                                      ORDER


Before BRISCOE, LUCERO and MURPHY, Circuit Judges.


      Nicholas Franklin Worcester, a state prisoner appearing pro se, seeks to

appeal the district court’s denial of his 28 U.S.C. § 2241 petition. The matter is

before this court on Worcester’s request for a certificate of appealability

(“COA”). See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken

from a “final order in a habeas corpus proceeding in which the detention

complained of arises out of process issued by a State court” unless the petitioner

first obtains a COA); Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000)

(holding that the requirements of § 2253(c)(1)(A) apply when the state habeas

petitioner is proceeding under § 2241). Because Worcester has not made a
“substantial showing of the denial of a constitutional right,” this court denies his

request for a COA and dismisses this appeal. 28 U.S.C. § 2253(c)(2) (providing

that a COA “may issue . . . only if the applicant has made a substantial showing

of the denial of a constitutional right”).

      In his § 2241 petition, Worcester asserted that the Oklahoma Department of

Corrections miscalculated his entitlement to “sentence credits,” i.e., good conduct

and work credits, in violation of the Due Process and Ex Post Facto Clauses of

the United States Constitution. The district court concluded Worcester’s claim

was barred by the statute of limitations set out in 28 U.S.C. § 2244(d). In

particular, the district court noted that because it was clear from the record that

Worcester was aware of the factual predicate underlying his claim well before the

effective date of § 2244, the limitations period expired on April 23, 1997. 28

U.S.C. § 2244(d)(1)(D) (providing that a one-year limitation period, running from

the date on which the factual predicate underlying the claim could have been

discovered, shall apply to habeas petitions filed by state court prisoners); Hoggro

v. Boone, 150 F.3d 1223, 1225-26 (10th Cir. 1998) (establishing a grace period

for prisoners whose limitations period would have otherwise expired prior to the

effective date of § 2244(d); those individuals had until April 23, 1997 to file their

habeas petitions). The district court further concluded Worcester was not entitled

to benefit from statutory tolling, 28 U.S.C. § 2244(d)(2), because he did not file a


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state petition until after the federal limitations period had already run. Fisher v.

Gibson, 262 F.3d 1135, 1142-43 (10th Cir. 2001). Finally, the district court

concluded Worcester was not entitled to equitable tolling because he had not

diligently pursued his claims. Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998).

      A COA may issue if Worcester “has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing,

Worcester must demonstrate “that reasonable jurists could debate whether (or, for

that matter, agree that) the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotation

omitted). In evaluating a request for a COA, it is not the role of this court to

engage in a “full consideration of the factual or legal bases adduced in support of

the claims.” Id. Instead, this court undertakes “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each claim. Id.

at 338. Worcester is not required to demonstrate that his appeal will succeed to

be entitled to a COA. He must, however, “prove something more than the

absence of frivolity or the existence of mere good faith.” Id. (quotations

omitted).

      Where, as is the case here, the district court denies a habeas petition on

procedural grounds without reaching the underlying constitutional claim, a COA


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may issue only if Worcester shows both (1) reasonable jurists would find it

debatable whether the petition states a valid claim of the denial of the

constitutional right, and (2) reasonable jurists would find it debatable whether the

district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S.

473, 484 (2000). This court may deny a COA on either of these two prongs. Id.

at 485. We review for abuse of discretion a district court’s decision whether or

not to equitably toll § 2244(d)’s one-year limitations period. Burger v. Scott, 317

F.3d 1133, 1141 (10th Cir. 2003).

      This court has reviewed Worcester’s application for a COA and appellate

brief, the district court’s order, and the entire record on appeal pursuant to the

framework set out by the Supreme Court in Miller-El and concludes that

Worcester is not entitled to a COA. The district court’s resolution of Worcester’s

petition on the basis of the statute of limitations set out in § 2244(d) is not

reasonably subject to debate and the claim is not adequate to deserve further

proceedings. 1 Likewise, the district court’s decision that Worcester is not entitled


      1
        Even liberally construing his pleadings, both before the district court and
this court, Worcester has never contended that there exists some kind of
“continuing violation” exception to the limitations period set out in § 2244(d).
Accordingly, this court does not address that question. Meade v. Grubbs, 841
F.2d 1512, 1526 (10th Cir. 1988) (holding that pro se litigants are entitled to a
liberal construction of their pleadings); Farmers Ins. Co. v. Hubbard, 869 F.2d
565, 570 (10th Cir. 1989) (holding that, absent extraordinary circumstances,
issues not raised below will not be heard on appeal); National Commodity &
Barter Ass’n v. Gibbs, 886 F.2d 1240, 1244 (10th Cir. 1989) (holding that this

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to equitable tolling is not an abuse of discretion. Accordingly, Worcester has not

“made a substantial showing of the denial of a constitutional right” and is not

entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court DENIES Worcester’s request for a COA and DISMISSES this

appeal.

                                       Entered for the Court
                                       CLERK, COURT OF APPEALS


                                       By
                                               Deputy Clerk




court will not manufacture issues for appellants).

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