*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 4 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ GARY DEAN CHILDERS, Petitioner-Appellant,

v. RON CHAMPION, Warden, Respondent-Appellee. No. 00-5056 (N.D. Okla.) (D.Ct. No. 99-CV-231-E)

____________________________ ORDER AND JUDGMENT *

Before BRORBY , KELLY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.

Appellant Gary Dean Childers, a state inmate appear ing pro se and in forma1 Mr. Childers’ motion to proceed in forma pauperis is denied as moot in light of

the district court having granted him leave to proceed in forma pauperis.

2While a certificate of appealability is not necessary for a federal prisoner to proceed under § 2241, a state prisoner, like Mr. Childers, must obtain a certificate of appealability to appeal the denial of a habeas petition whether such petition was filed pursuant to §§ 2254 or 2241. See Montez, 208 F.3d at 866-67, 869. In this case, the district court denied Mr. Childers a certificate of appealability.

-2- pauperis , 1 seeks a certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C. § 2254 habeas petition a s time-barred. Although Mr. Childers filed his petition under § 2254 and the di strict court construed it as a § 2254 petition, we construe it as a petition filed under 28 U.S.C. § 2241 because it challenges the execution of his sentence, ratherthan the validity of his sentence as required for filings under § 2254. See Montez v. McKinna , 208 F.3d 862, 865 (10th Cir. 2000). We exercise jurisdiction under 2 8 U.S.C. § 2253(a), deny Mr. Childers’ application for a certificate of appealab ility, 2 and dismiss his appeal.

Mr. Childers is serving a prison term under an Oklahoma state conviction for first-degree rape and forcible sodomy of a mino r girl. See Childers v. State, 764 P.2d 900, 901-903 (Okla. Crim. App. 1988), abro gation on other grounds recognized in Rogers v. State , 890 P.2d 959, 966 n.3 (Okla. Crim. App. 1995). I n his federal habeas petition, Mr. Childers alleged aphysical injury he received limited his ability to earn early release credits w hich he claimed he should-3-

continue to receive in order to shorten his Oklahom a sentence. Mr. Childers also sought restoration of previously earned early relea se credits which Oklahoma revoked as a result of a disciplinary proceeding ov er a knife found in his cell, and previously earned credits allegedly lost by a misca lculation of prison officials after he was reclassified to unemployed status.

The district court referred the matter to a magistr ate judge who recommended denying Mr. Childers’ petition as time- barred. Specifically, the magistrate judge held that under 28 U.S.C. § 2244(d )(1)(D), Mr. Childers had one year, from the date on which the factual predicate of his claim could have been discovered through the exercise of due diligence, t o timely file his habeas petition. In so holding, the magistrate judge dete rmined the date on which the factual predicate of Mr. Childers’ unearned credit claim could have been discovered through the exercise of due diligence wa s the date of his injury on March 15, 1995, because that is the day he became u nable to earn early release credits by working. In addition, the magistrate ju dge determined the dates on which the factual predicate of Mr. Childers’ discip linary and miscalculated earned credit claims could have been discovered though the exercise of due diligence arose, at the latest, on October 30, 1996, when Mr. Childers alleged prison3In using the October 30, 1996 date, the magistrate judge gave Mr. Childers the

benefit of the doubt because Mr. Childers’ consolidated record card indicated prison officials removed his earned credits one year earlier.

-4- officials removed his earned early release credits. 3 Applying the one-year limitation period, the magistrate judge determined Mr. Childers’ had until October 30, 1997 to file his petition. However, the magist rate judge tolled Mr. Childers’ limitation period for 411 days after October 30, 19 97, or until December 15, 1998, which constitutes the amount of time Mr. Chil ders’ state application for post-conviction relief was pending. Because Mr. Ch ilders did not file his initial petition until March 29, 1999, or more than three m onths after the statutory limitation period expired on December 15, 1998, the magistrate judge held that Mr. Childers’ petition was untimely filed. In so h olding, the magistrate judge determined no other state post-conviction proceedin g tolled the one-year limitation period and no situation existed entitlin g him to equitable tolling.

After reviewing Mr. Childers’ objections to the mag istrate judge’s Report and Recommendation, the district court adopted the magistrate judge’s report and dismissed Mr. Childers’ petition with prejudice as barred by the statute of limitations. In dismissing Mr. Childers’ petition, the district court determined the period during which the Oklahoma Risk Management Di vision considered Mr.-5-

Childers’ tort claims did not toll the limitation p eriod for his habeas relief claim, and no other basis existed for equitable tolling.

On appeal, Mr. Childers raises the same issues rais ed in his petition and continues to argue the merits of his early release credit issues. As to the issue of whether his petition is time-barred, Mr. Childers a gain asserts the time during which the Oklahoma Risk Management Division conside red his tort claims should toll his limitation period.

As previously noted, we construe Mr. Childers’ peti tion as arising under 28 U.S.C. § 2241 because he challenges the execution o f his sentence based on issues concerning his early release credits, ratherthan the validity of his conviction and sentence as required under § 2254. See Montez , 208 F.3d at 865. We have previously determined issues concerning ear ly release credits, such as good time credit, are properly adjudicated under 28 U.S.C. § 2241, as issues concerning the execution of the defendant’s sentenc e. See United States v.
Furman , 112 F.3d 435, 438 (10th Cir. 1997); Brown v. Smith , 828 F.2d 1493, 1495 (10th Cir. 1987) (per curiam); see also Spangle v. Holt , 211 F.3d 1279, 2000 WL 504783, at *1 (10th Cir. Apr. 28, 2000) (unpubli shed opinion). We review de

novo the district court’s legal conclusions in dismissi ng a § 2241 habeas petition.-6-

Patterson v. Knowles , 162 F.3d 574, 575 (10th Cir. 1998). We have prev iously applied the one-year limitation period and tolling provision specified in 28 U.S.C. § 2244(d) to determine whether a petition filed und er § 2241 is time-barred. See Osborn v. Everett , 208 F.3d 226, 2000 WL 300216, at *1-2 (10th Cir. Mar. 23, 2000) (unpublished opinion).

“A certificate of appealability may issue ... only if the applicant has made a substantial showing of the denial of a constitution al right.” 28 U.S.C. § 2253(c)(2). The Supreme Court has recently descr ibed the process by which an application for a certificate of appealability shou ld be analyzed: When the district court denies a habeas petition onprocedural grounds without reaching the prisoner’s underlying constitutional claim, a [certificate of appealability] should issu e when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whe ther the district court was correct in its procedural ruling. ... Each component of the § 2253(c) showing is part of a threshold inquiry, and a court may find that it can dispose of the application in a fair and prompt manner if it proce eds first to resolve the issue whose answer is more apparent from the re cord and arguments. Slack v. McDaniel , ___ U.S. ___, ___, 120 S. Ct. 1595, 1604 (2000) ( emphasis added). The Court reiterated that courts are encou raged to first resolve procedural issues before addressing a constitutiona l question. See id.-7-

In this case, we agree with the magistrate judge an d district court that Mr. Childers’ petition is time-barred. While the magis trate judge and district court erred in construing Mr. Childers’ petition as a § 2 254 petition, such construction is harmless given they properly applied the applicable limitation period and tolling provisions. Because the magistrate judge and district court properly determined Mr. Childers’ petition is time-barred, w e decline to duplicate the same analysis here, other than to conclude Mr. Childers fails to make a substantial showing of the denial of a constitutional right as required for certificate of appealability under 28 U.S.C. § 2253(c)(2). Specif ically, Mr. Childers fails to show that jurists of reason could debate whether th e district court was correct in its procedural ruling. Thus, for substantially the same reasons contained in the magistrate judge’s February 23, 2000 Report and Rec ommendation, and the district court’s March 22, 2000 Order, we deny Mr. Childers’ application for a certificate of appealability and DISMISS his appeal.

Entered by the Court: WADE BRORBY United States Circuit Judge