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This order and judgment is not binding precedent, except under the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his parole was revoked on February 7, 1996.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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