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

                                                                   December 11, 2007
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court
DOUGLAS C. SHAFFER,

              Petitioner-Appellant,
                                                         No. 07-6224
       v.                                             (W.D. Oklahoma)
                                                   (D.C. No. CV-07-638-C)
RANDALL G. WORKMAN, Warden,

              Respondent-Appellee.


                                      ORDER


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



      Douglas C. Shaffer, a prisoner appearing pro se, filed this petition for a

writ of habeas corpus under 28 U.S.C. § 2241, challenging the execution of his

sentence. On the recommendation of the magistrate judge who reviewed the case,

the petition was dismissed in part for being time-barred and in part for failure to

exhaust administrative remedies and on the merits. The district court refused to

grant Shaffer a certificate of appealability (“COA”) or permission to proceed in

forma pauperis on appeal. Accordingly, Shaffer seeks a COA from this court, as

well as permission to proceed in forma pauperis. We deny his application for

COA and permission to proceed in forma pauperis and dismiss this appeal.
                                 BACKGROUND

      Shaffer is currently incarcerated in Oklahoma, serving a sixty-year sentence

for second degree murder after former convictions for two or more felonies.

While incarcerated at the Mack Alford Correctional Center (“MACC”), Shaffer

was charged with two misconducts. One was for disobedience of orders, for

which a disciplinary hearing was conducted on January 9, 2004, and a rehearing

was held on February 4, 2004. At the rehearing, Shaffer was found guilty and

punishment was imposed, including twenty days in disciplinary segregation and

the loss of 120 days of earned credit. His administrative appeal was denied on

April 13, 2004. The other misconduct related to the possession and/or

manufacture of contraband, and, in a disciplinary hearing conducted on January

15, 2004, he was found guilty. In an administrative appeal, the misconduct was

amended to allege a violation of law misconduct, the matter was remanded for

another hearing, a disciplinary hearing was conducted and Shaffer was found

guilty. Punishment included thirty days in disciplinary segregation and the loss

of 180 days of earned credit. His administrative appeal of this offense was denied

on June 21, 2004.

      In this petition, Shaffer has raised twelve issues relating to the two

misconduct proceedings, claiming that various constitutional rights were violated

in the course of the proceedings. In his thirteenth issue, Shaffer challenges the

DOC’s withdrawal from his prison savings account of amounts for payment of

                                         -2-
costs and fees that, he alleges, were not specifically imposed in the judgment and

sentence entered against him in state court in any of his convictions.

      The district court held that Shaffer’s first twelve issues, relating to the

misconduct proceedings, were time-barred by the one-year time limitation

contained in the Antiterrorism and Effective Death Penalty’s amendments to 28

U.S.C. § 2244. See 28 U.S.C. § 2244(d)(1). It further held that Shaffer’s

thirteenth issue, relating to the costs deducted from his prison account, was

unexhausted and, in any event, meritless. We agree.

                                   DISCUSSION

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). A COA may be issued “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make that showing, a prisoner 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.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (further quotation omitted). If the district court denied the “habeas

petition on procedural grounds without reaching the prisoner’s underlying

constitutional claim,” the prisoner must, in order to obtain a COA, demonstrate

“that jurists of reason could find it debatable whether the petition states a valid




                                          -3-
claim of the denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.” Id.

      In this case, the district court agreed with the magistrate judge that

Shaffer’s first twelve claims were time-barred. Where a petitioner seeking 28

U.S.C. § 2241 habeas relief has timely and diligently exhausted his administrative

remedies, “§ 2241(d)(1)(D)’s one-year time limitation does not commence until

the decision rejecting his administrative appeal becomes final.” Dulworth v.

Evans, 442 F.3d 1265, 1268 (10th Cir. 2006). Shaffer’s administrative appeals of

his two misconducts became final on April 13 and June 21 of 2004. Accordingly,

this petition, filed on May 29, 2007, was well past the one-year deadlines

following those dates. While Shaffer argues that he is actually innocent of the

conduct underlying those two misconducts, and makes various arguments why the

one-year period should have been tolled, we reject them.

      With respect to Shaffer’s final claim, regarding the money deducted from

his prison account, the district court found that one part of his claim stemming

from one of his prior convictions had been pursued in the Oklahoma state courts,

but had been rejected by the Oklahoma Court of Appeals. The district court

found that the remainder of Shaffer’s claims regarding deductions had not been

exhausted. Additionally, the court denied the claims on their merits. 1

      1
      The magistrate judge denied the claims on the merits as well as for lack of
exhaustion. The district court adopted the magistrate judge’s recommendation,
                                                                    (continued...)

                                          -4-
      The record in this case includes an affidavit from the Administrative

Programs Officer of the Administrative Review Unit at the DOC. She has access

to offender grievance records relating to inmates. She stated that she could find

no grievance appeal from Shaffer relating to the collection of fees. We must

conclude, following our careful review of the record in this case, that Shaffer has

failed to exhaust his remedies regarding the deduction of fees from his account.

      Finally, Shaffer seeks leave to proceed in this court in forma pauperis. To

qualify, Shaffer “must show a financial inability to pay the required filing fees

and the existence of a reasoned, nonfrivolous argument on the law and facts in

support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d 502,

505 (10th Cir. 1991). Because Shaffer has failed to raise any such “reasoned,

nonfrivolous” argument, we deny his motion.

                                  CONCLUSION

      For the foregoing reasons, we DENY Shaffer’s request for a COA and his

motion to proceed before this court in forma pauperis. We DISMISS this appeal.


                                                 ENTERED FOR THE COURT



                                                 Elisabeth A. Shumaker, Clerk



      1
      (...continued)
and denied relief on Shaffer’s issue thirteen.

                                         -5-
