UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80257
(303) 844-3157
Elisabeth A. Shumaker Douglas E. Cressler
Clerk Chief Deputy Clerk
January 25, 2006
TO: ALL RECIPIENTS OF THE ORDER DENYING A CERTIFICATE OF
APPEALABILITY
RE: 05-6185, Berry v. Oklahoma
Filed January 18, 2006
The last sentence of this order should read, “We DENY Mr. Berry’s
application for a COA and DISMISS the appeal.” A corrected version is attached.
Sincerely,
Elisabeth A. Shumaker, Clerk of Court
By:
Amy Frazier
Deputy Clerk
F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 18, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RANDALL BERRY,
Petitioner - Appellant,
No. 05-6185
v. (D.C. No. 05-CV-00311-C)
(W.D. Okla.)
STATE OF OKLAHOMA,
Respondent - Appellee.
ORDER
DENYING CERTIFICATE OF APPEALABILITY
Before KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges.
Randall Berry, a state inmate appearing pro se, seeks a certificate of
appealability (“COA”) to appeal from the district court’s denial of his habeas
petition filed pursuant to 28 U.S.C.§ 2241. Mr. Berry claims that the Department
of Corrections violated the ex post facto clause by failing to promote him in
classification levels as a result of a change in policy occurring after his
disciplinary action. Mr. Berry contends that the district court wrongly dismissed
his appeal as untimely. R. Doc. 9. Because Mr. Berry has not made “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA and
dismiss the appeal.
While serving a thirty-five year sentence, a disciplinary committee found
Mr. Berry guilty of battery of a staff member resulting in bodily harm, a “Class
A” offense. R. Doc. 1 at Ex. 2. Mr. Berry alleges that amendments in
Department of Corrections (“DOC”) policy on March 19, 1996 and April 9, 1997,
changed the class of his misconduct, resulting in his being held at class level two
and thus has substantially lengthened his sentence. R. Doc. 1 at 5-6. Mr. Berry
filed for habeas relief on March 18, 2005.
The magistrate judge recommended that the petition be dismissed as time
barred pursuant to the one-year limitation period in 28 U.S.C. § 2244(d)(1)(D).
R. Doc. 6. The one year limitation began to run when the factual predicate of Mr.
Berry’s claims could have been discovered through due diligence. 28 U.S.C. §
2244(d)(1)(D). The latest possible date Mr. Berry could have been considered
aware of his claims was on December 11, 2003. 1 R. Doc. 1 at Ex. 3. As such, the
statute of limitations expired on December 11, 2004. The magistrate judge also
rejected equitable tolling because Mr. Berry failed to show extraordinary
circumstances justifying tolling; moreover, the lack of diligence with which Mr.
1
We note the magistrate correctly observed that with the exercise of
diligence, Mr. Berry’s claims would have been known to him much earlier. We
need not reach this point however, because it is clear Mr. Berry knew about his
claims on December 11, 2003, and thus we need not engage in a review of Mr.
Berry’s diligence up to that time (or lack thereof).
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Berry pursued his claims, makes equitable tolling inappropriate. See Gibson v.
Klinger, 232 F.3d 799, 808 (10th Cir. 2000).
Where the district court dismisses a petition on procedural grounds, a COA
requires the inmate to demonstrate that it is reasonably debatable whether (1) the
petition states a valid claim of the denial of a constitutional right, and (2) the
districts court’s procedural ruling is correct. Slack, 529 U.S. at 484; see
also Miller-El v. Cockrell, 537 U.S. 322, 337 (2003). The district court’s
procedural ruling is not reasonably debatable.
We DENY Mr. Berry’s application for a COA and DISMISS the appeal.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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