UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JEWEL WESLEY GIST, Petitioner - Appellant,

v. EDWARD EVANS, Interim Director, Oklahoma Department of Corrections, Respondent - Appellee. No. 14-5007 (D.C. No. 4:13-CV-00083-JED-TLW) (N.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY *

Before GORSUCH , O’BRIEN , and PHILLIPS , Circuit Judges.
Jewel Wesley Gist, an Oklahoma stat e prisoner proceeding pro se, seeks a Certificate of Appealability (“COA”) in order to appeal the dismissal of his 28 U.S.C. § 2254 habeas petition. Exercising our jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Gist a COA and dismiss the matter.
I. Background On August 6, 2001, Mr. Gist was convi cted in Oklahoma state court on his pleas of guilty to larceny of an autom obile, and second-degree burglary. He was

* This order is not binding precedent, ex cept under the doctrines of law of the case, res judicata, and colla teral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 16, 2014
Elisabeth A. Shumaker Clerk of Court- 2 - sentenced that day to a twenty-year term of imprisonment on each count, to be served concurrently, with ten years suspended. Mr. Gist did not file an application to withdraw his guilty pleas or otherwise di rectly appeal his convictions to the Oklahoma Court of Criminal Appeals (“OCCA”). See Rule 4.2, Rules of the Oklahoma Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18, App. (requiring a defendant to file an application to wit hdraw a guilty plea within ten days from the pronouncement of the Judgment and Sentence in order to appeal from any conviction on a plea of guilty). Beginning in July 2003 and continuing through December 2006, Mr. Gist filed multiple post-conviction applications for relie f in Oklahoma state district court, but all were denied. In his thir d application for post-convicti on relief, filed in February 2006, Mr. Gist sought to wit hdraw his guilty pleas. He ar gued for the first time that his ten-year suspended sentence was an “ illegal” sentence under Okla. Stat. tit. 22, § 991a(C) (1995) and Bumpus v. State , 925 P.2d 1208 (Okla. Crim. App. 1996), because he had multiple prior felony convic tions that made hi m ineligible for a suspended sentence. R. at 18. The state district court de nied relief, and Mr. Gist’s appeal from this denial to the OCCA was dismissed as unt imely. Mr. Gist raised unsuccessfully the issue of his allegedl y illegal suspended sentence in later applications for post-convicti on relief filed in Septembe r and December 2006, and he did not appeal from thes e orders to the OCCA.- 3 - In July 2010, after Mr. Gist’s re lease from prison in January 2010 on probation, the State filed an application to revoke Mr. Gist’s suspended sentence, arguing that he had violated th e terms of his probation. Th e state district court held hearings on the matter, at which time Mr. Gist again raised th e issue of an illegal suspended sentence. Even so, he declined to s eek to withdraw his guilty pleas. In June 2011, the state district court gran ted the State’s appli cation to revoke and revoked five years of Mr. Gist’s ten-year su spended sentence. Mr. Gist appealed the revocation order to the OCCA, and it affirmed. On February 18, 2013, in the United St ates District Court for the Northern District of Oklahoma, Mr. Gi st filed a pro se federal ha beas petition under 28 U.S.C. § 2254. He argued that revoking his susp ended sentence violated his right to due process of law because the state district court lacked jurisdiction under Oklahoma state law to suspend a portion of his original sentence and, ther efore, the suspended sentence was “[v]oidable at its inception,” R. at 24. He furthe r argued that he had received ineffective a ssistance of counsel at both the trial and appellate levels. He also claimed that he did not receive a fa ir and impartial revo cation hearing. The State moved to dismiss Mr. Gist’s petition as time-barred by the one-year statute of limitations under the Antiterrorism and E ffective Death Pena lty Act of 1996 (“AEDPA”). The district court fou nd the petition untimely under 28 U.S.C. § 2244(d), dismissed it, and denied a COA. Mr. Gist now seeks a COA from this court on the same grounds raised in his § 2254 petition.- 4 - II. Discussion Before Mr. Gist can challenge the dist rict court’s dismissal of his habeas petition, he must first obtain a COA. See Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253(c)(1)(A). The granting of a COA is a jurisdictional prerequisite to his appeal. See Miller-El , 537 U.S. at 336. We will only issue a COA upon “a substantial showing of the denial of a constitu tional right.” 28 U.S.C. § 2253(c)(2). When, as here , a district court “denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows . . . 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 re ason would find it debatable wh ether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). We review a district court’s denial of a habeas petition based on 28 U.S.C. § 2244(d) de novo. See Fleming v. Evans , 481 F.3d 1249, 1254 (10th Ci r. 2007). We liberally construe Mr. Gist’s pro se request for a COA. See Hall v. Scott , 292 F.3d 1264, 1266 (10th Cir. 2002). The AEDPA governs Mr. Gist ’s petition. It establis hes a one-year limitations period for state prisoners to se ek federal habeas relief. See 28 U.S.C. § 2244(d)(1). Generally, the limitations period runs fro m the date on which the state judgment became final after direct appeal or the expiration of the time for seeking such review. See id . § 2244(d)(1)(A). The statute delays commencement of the limitations period- 5 - when (1) state action unlaw fully impeded the prisoner from filing his habeas application; (2) the prisone r asserts a constitutional ri ght newly recognized by the Supreme Court and made retroactive on collate ral review; or (3) the factual predicate for the prisoner’s claim could not previ ously have been discovered through due diligence. See id . § 2244(d)(1)(B)-(D). It also to lls the limitations period during the pendency of a properly filed appli cation for state collateral relief. See id

. § 2244(d)(2). The district court determined that beca use Mr. Gist did not move to withdraw his guilty pleas in order to commence a direct appeal from his convictions, his convictions became final on August 16, 2001, ten days after entry of his Judgment and Sentence. See Rule 4.2, Rules of the Oklahom a Court of Criminal Appeals, Okla. Stat. tit. 22, Ch. 18, App. It observed, and we agree, that in his habeas petition Mr. Gist does not challenge the revocation of his suspended sentence, but instead challenges the imposition of the suspended se ntence as part of his original sentence in 2001. Accordingly, the AEDPA one-y ear limitations period began to run on August 17, 2001. The district court found th at to be timely, Mr. Gist needed to have filed his habeas petition by August 19, 2002. 1 See United States v. Hurst , 322 F.3d 1256, 1259-61 (10t h Cir. 2003) (providing that AEDP A one-year limitations period is calculated by the anniversary method). It further found that his applications for

1 Because August 17, 2002, fell on a Sa turday, Mr. Gist’s d eadline for filing a federal habeas petition was Monday, August 19, 2002. See Fed. R. Civ. P. 6(a)(3)(A).- 6 - post-conviction relief in state court did not toll the limitations period, see 28 U.S.C. § 2244(d)(2), because these applications were all filed afte r expiration of the one-year limitations period. See Fisher v. Gibson , 262 F.3d 1135, 1142-43 (10th Cir. 2001). The district court concluded that Mr. Gist’s habeas petition, filed on February 18, 2013, was therefore untimely. It also found that Mr. Gist made no argument that he was entitl ed to equitable tolling. In his Combined Opening Brief a nd Application for Certificate of Appealability, Mr. Gist does not demonstrate th at the dismissal of his habeas petition as untimely is debatable. Indeed, he does not address the untimeliness of his petition at all. Nevertheless, we examine the que stion but conclude th at jurists of reason could not debate the correct ness of the district cour t’s procedural ruling finding Mr. Gist’s habeas petiti on untimely under § 2244(d). See Slack , 529 U.S. at 484. We thus need not reach the question whether jurists of reason could debate whether Mr. Gist’s petition states a valid constitutional claim. We note, however, that although Mr. Gist identifies the issue of his allegedly illeg al suspended sentence as a “due process” violation, the claim amounts to a challenge of a pure issue of state law and, therefore, cannot be the ba sis of federal habeas relief. See Johnson v. Mullin , 505 F.3d 1128, 1141 (10th Cir. 2007) (“[I]t is not the pr ovince of a federal habeas court to reexamine state c ourt determinations on state- law questions.” (internal quotation marks omitted)); Turrentine v. Mullin , 390 F.3d 1181, 1195-96 (10th Cir. 2004) (“[A] federal court unde r § 2254 may not grant relief unless there was an error- 7 - of federal law, in other words, unless this error amounted to a violation of the federal constitution.”). 2
III. Conclusion For the foregoing reasons, we deny Mr. Gi st’s request for a COA and dismiss this matter. We deny as moot Mr. Gist’s motion for release from incarceration pending appeal.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

2 In his appeal from the state distri ct court’s revocation order, the OCCA rejected Mr. Gist’s claim that his su spended sentence was illegal under Oklahoma state law. See R. at 144, 147-49. As noted, howev er, we will not review issues of purely state law on federal habeas review.