UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JIMMY PHILLIPS,

Petitioner-Appellant,

v.

MELINDA GUILFOYLE,

Respondent-Appellee.

No. 04-6304

(CV-04-627-M)

(W. D. Okla.)

ORDER DENYING A CERTIFICATE OF APPEALABILITY

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.

Jimmy Phillips, a state prisoner proceeding pro se, requests a certificate of appealability ("COA") to appeal the denial of his 28 U.S.C. § 2241 habeas corpus petition attacking the execution of his sentence. For substantially the same reasons set forth by the district court, we DENY Phillips' request for a COA and DISMISS.

On July 18, 1986, Phillips was paroled from a sentence imposed in 1970. While on parole, Phillips was convicted on new charges and returned to the custody of the Oklahoma Department of Corrections ("DOC") on seventeen concurrent twenty-year sentences. On September 20, 1988, Phillips' original parole was revoked, with the remainder of his original sentence to run consecutively to the more recent convictions. Phillips discharged the sentences on the more recent convictions on October 29, 2002 and was rebilled to his parole revocation sentence. On May 19, 2004, Phillips filed the instant petition in federal district court pursuant to § 2241.1 In his habeas petition, Phillips argued that he did not receive Ekstrand2 credits for job assignments from 1972 to July 1973 and from 1974 to October 1984, that the DOC's policy regarding compliance with Ekstrand "violates the U.S. District Court for the Eastern District of Oklahoma 1993 ruling in Scales v. Reynolds," and finally that the DOC policy providing that inmates incarcerated as parole violators are subject to loss of the credits they earned prior to parole violates his due process rights. The district court dismissed his claims as time-barred after taking judicial notice that since 1976 Oklahoma law has required that the accumulated time of every inmate be tallied monthly and that a copy be provided to the inmate. It concluded that Phillips, through the exercise of due diligence, under § 2244(d)(1), should have been aware of the credits supposedly due him in the 1970's and 1980's, prior to the expiration of the one year grace period established by AEDPA and Hoggro v. Boone, 150 F.3d 1223, 1225-26 (10th Cir. 1998). It thus dismissed Phillips' habeas petition as untimely because it was filed well after the expiration of the AEDPA grace period on April 24, 1997.3

We have carefully reviewed the record on appeal, and conclude that the district court correctly denied Phillips' habeas petition as untimely. Therefore, we APPROVE Phillips' request to proceed in forma pauperis, DENY his application for a COA and DISMISS the appeal.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge