Barlor v. Patton

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 16, 2018
• Docket: 17-6205
• Status: Unpublished

Opinion

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 16, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court DANNY BARLOR,

Petitioner - Appellant,

v. No. 17-6205 (D.C. No. 5:17-CV-00576-W) ROBERT PATTON; TRACY ELLIS; (W.D. Okla.) OKLAHOMA DEPARTMENT OF CORRECTIONS,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before LUCERO, O’BRIEN, and MORITZ, Circuit Judges. _________________________________

Danny Barlor, an Oklahoma state prisoner, seeks a certificate of appealability

(“COA”) to challenge the district court’s denial of his 28 U.S.C § 2241 habeas petition.

We deny a COA and dismiss the appeal.

I

Barlor has been incarcerated since 1980. In 1985, he escaped from prison and was

recaptured. See Barlor v. Patton, No. CIV-15-66-D, 2016 WL 1273246, at *1 (W.D.

Okla., Mar. 31, 2016) (unpublished). In 1991, Barlor received a disciplinary write-up for

attempted escape. He alleges that the only evidence presented at his disciplinary hearing

* This order is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. on the attempted escape allegation was the testimony of a confidential informant. As a

result of this write-up, Barlor was demoted to the lowest possible class level used by the

Oklahoma Department of Corrections (“ODOC”) for calculating good time credits. See

Okla. Stat. Ann. tit. 57, § 138.

Barlor subsequently received level promotions for good behavior. In 1993, he

attained the highest class level for purposes of earning credits. In April of 2003, an

auditor at the private prison at which Barlor was housed applied an ODOC policy

promulgated in 1997 to determine Barlor’s credit level and classification. Barlor’s class

level was reduced and ten points were added to his score. In 2004, Barlor unsuccessfully

sought mandamus relief in state court to reinstate his credits and restore his previous

level. See Barlor v. Patton, 681 F. App’x 674, 676 (10th Cir. 2017) (unpublished).

Barlor also filed a civil rights complaint in federal district court in 2005, which was

dismissed.

In 2015, Barlor filed another civil rights action alleging that ODOC’s 1985, 1991,

and 2003 actions violated his rights under the Ex Post Facto Clause and the Due Process

Clause, and constituted double jeopardy. Id. Treating Barlor’s action as a challenge to

the execution of his sentence under § 2241, the district court held that Barlor’s request to

restore his time credits was time-barred. Id. at 678. It further rejected Barlor’s due

process and ex post facto claims for declaratory relief and damages on the merits. Id.

We affirmed the dismissal of Barlor’s due process and ex post facto claims on

direct appeal. Id. at 678-79. We noted that Barlor did not attempt to appeal the dismissal

of his challenge to the execution of his sentence in his opening brief and thus we did not

2 consider that issue. Id. at 677 n.4. However, we construed a document filed in this court

as a misdirected § 2241 petition and transferred it to the district court for adjudication.

Id. The district court dismissed that petition as untimely and barred by res judicata.

Barlor now seeks a COA to appeal that dismissal.

II

A state prisoner seeking to appeal the denial of § 2241 relief must obtain a COA.

See Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000). We may only issue a COA

if Barlor shows “that reasonable jurists could debate whether (or, for that matter, agree

that) the petition should have been resolved in a different manner or that the issues

presented were adequate to deserve encouragement to proceed further.” Slack v.

McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted).

Reasonable jurists could not dispute the district court’s resolution of Barlor’s

claim. Barlor was required to file a habeas petition within one year of the date on which

the factual predicate of his claims could have been discovered through the exercise of due

diligence. 28 U.S.C. § 2244(d)(1)(D); see Dulworth v. Evans, 442 F.3d 1265, 1268 (10th

Cir. 2006) (holding that § 2244 applies to state prisoners’ § 2241 claims). As we

explained in Barlor’s previous appeal, he was aware of the factual predicate of his claims

by 2004 at the latest. Barlor, 681 F. App’x at 678. Barlor presents no argument to the

contrary on appeal.1

1 Because we affirm the district court’s ruling as to timeliness, we need not consider its alternative ruling as to res judicata. 3 III

We DENY a COA and DISMISS the appeal. Barlor’s motion to proceed in forma

pauperis is GRANTED.

Entered for the Court

Carlos F. Lucero Circuit Judge