Filed: Patrick Fisher

F I L E D
UNITED STATES COURT OF APPEALS
United States Court of Appeals

Tenth Circuit
TENTH CIRCUIT
APR 4 2002
PATRICK FISHER
Clerk
VEAR L. BROOKS,
Petitioner - Appellant,
v.
No. 01-4227
(D.C. No. 01-CV-456-S)
STATE OF UTAH, UTAH BOARD

OF PARDONS, and JIM SMITH,
Warden,
(D. Utah)
Respondents - Appellees.
ORDER AND JUDGMENT
Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2). The case is, therefore, ordered
submitted without oral argument.
This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
*
Vear Brooks, a state prisoner proceeding pro se, requests a certificate of

appealability (COA) to appeal the denial of his 28 U.S.C. 2254 habeas corpus
petition. The record appears to indicate that Mr. Brooks was convicted in Utah
state court of two counts of attempted sexual abuse of a child. According to Mr.
Brookss habeas petition, the state district court entered its judgment of
conviction against him on October 21, 1994. Mr. Brooks avers that he did not
directly appeal his conviction, but it appears that he filed state postconviction
petitions in 1995, 1999, and 2000.
Because Mr. Brookss conviction appears to have become final before
Congress passed the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), he had to file his federal habeas petition within one year of April 24,
1996 for that petition to be timely.
See 28 U.S.C. 2244(d); Gibson v. Klinger ,
232 F.3d 799, 803, 808 (10th Cir. 2000). In order to determine whether Mr.
Brookss 2254 petition was filed within the one-year time period, the district
court ordered Mr. Brooks to submit a letter specifying (1) when he filed his state
court post-conviction petition(s) and (2) how and when the state district court, the
Utah Court of Appeals, and/or the Utah Supreme Court ruled upon those state
court post-conviction petition(s). The district court advised Mr. Brooks that
failure to supply such information within thirty days would result in dismissal of
-2-
Mr. Brookss petition. Mr. Brooks did not submit any information and the district
court subsequently dismissed his petition.
While a district court can grant a COA, the district court did not do so in
this case. Since the district court did not address the issue, a COA is deemed
denied. See Tenth Circuit Emergency General Order of Oct. 1, 1996. Thus, this
Court must grant a COA in order to address the merits of Mr. Brookss claims.
To be entitled to a COA, Mr. Brooks must make a substantial showing of
the denial of a constitutional right. 28 U.S.C. 2253(c)(2). He may make this
showing by demonstrating that the issues he raises are debatable among jurists,
that a court could resolve the issues differently, or that the questions presented
deserve further proceedings.
See Slack v. McDaniel , 529 U.S. 473, 483-84
(2000). Because he is proceeding pro se, we construe Mr. Brookss allegations

liberally. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam).
We note that Mr. Brookss petition in part challenges his sentence as
indeterminate in violation of his right to due process and his right to be free
from cruel and unusual punishment.
See Rec. doc. 3, at 5-6 ( 2254 Petition,
filed June 22, 2001). He also appears to be challenging the execution of his
sentence as unlawful, which might properly state a claim under 2241 of
AEDPA. Irrespective of whether his original petition was actually filed pursuant
to 2241 or 2254, Mr. Brooks, because he is a state prisoner, needs a COA in
-3-
order to appeal the denial of his habeas petition in the district court.
See Montez
v. McKinna , 208 F.3d 862, 868-69 (10th Cir. 2000). Additionally, claims brought
pursuant to 28 U.S.C. 2241 are subject to the same one-year statute of
limitations as are claims brought pursuant to 2254.
See 2244(d).
We have reviewed Mr. Brookss brief, the district courts orders, and the
entire record on appeal. Because Mr. Brooks failed to respond to the district
courts order for a follow-up letter to clarify the timeliness of his 2254 petition,
the district courts dismissal of his petition was correct. When, as here, a claim is
denied on procedural grounds without reaching the merits of the underlying
constitutional claim, a COA should issue only if the petitioner shows that jurists
of reason would find it debatable whether the district court was correct in its
procedural ruling.
Slack , 529 U.S. at 484. Mr. Brooks has made no such
showing, and we therefore deny his request for a COA on this claim.
We DENY the request for a COA and DISMISS the appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
-4-

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F I L E D

UNITED STATES COURT OF APPEALS

United States Court of Appeals

STATE OF UTAH, UTAH BOARD

Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.

Vear Brooks, a state prisoner proceeding pro se, requests a certificate of

See 28 U.S.C. 2244(d); Gibson v. Klinger ,

See Slack v. McDaniel , 529 U.S. 473, 483-84

(2000). Because he is proceeding pro se, we construe Mr. Brookss allegations

See Rec. doc. 3, at 5-6 ( 2254 Petition,

Slack , 529 U.S. at 484. Mr. Brooks has made no such

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