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

                            FOR THE TENTH CIRCUIT                            October 2, 2020
                        _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 JOSEPH A. HARRIS,

       Petitioner - Appellant,

 v.                                                          No. 20-8011
                                                    (D.C. No. 2:19-CV-00193-NDF)
 MICHAEL PACHECO, Warden,                                      (D. Wyo.)
 Wyoming State Penitentiary,

       Respondent - Appellee.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, McHUGH, and EID, Circuit Judges.
                  _________________________________

      Joseph A. Harris, a Wyoming state prisoner representing himself, seeks to

appeal the district court’s dismissal of his application for relief under 28 U.S.C.

§ 2241. We deny his request for a certificate of appealability (COA) and dismiss that

aspect of the matter. Aside from seeking a COA, Mr. Harris appeals the district

court’s order denying his motion to appoint counsel, and we affirm that order.




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
                                    I. Background

      In 1999 a Wyoming state court sentenced Mr. Harris to serve between 22 and

40 years in prison. He eventually was placed in a community-corrections facility. In

2015, however, he left the facility and did not return; after surrendering in North

Carolina, he was extradited back to Wyoming. On April 30, 2015, he was found

guilty of escape under the prison disciplinary code. He pursued an administrative

appeal but the conviction was upheld on July 21, 2015. On March 21, 2017, the

Wyoming parole board ordered that based on his escape he is ineligible for parole on

the sentence he was serving when he escaped.

      On February 26, 2018, Mr. Harris petitioned for a writ of habeas corpus in a

Wyoming state court. The court dismissed the petition on April 4, 2019.

      In September 2019, Mr. Harris filed his § 2241 application. He asserted that

his 2015 disciplinary proceeding violated his due-process rights because (1) no one

told him that an escape conviction would render him ineligible for parole, (2) no one

brought him before a court without unnecessary delay, (3) the disciplinary sergeant

was not neutral, and (4) he lost good time that the sentencing judge had granted.1

Mr. Harris also alleged that the Wyoming parole board had granted parole to at least



      1
        Mr. Harris’s good-time claim is unclear. His application says that the
Wyoming Attorney General has not “contented [sic] anything about the [Wyoming
State Penitentiary] adding time to Mr. Harris’ incarceration by removing Good time
granted by the judge during his sentencing which the disciplinary involved has done.”
R. at 13. The district court reasonably construed this to allege “the disciplinary
proceeding added time to his incarceration by the removal of good time credit.” R. at
123.
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six other prisoners who were statutorily ineligible, an allegation that the district court

construed as an equal-protection claim. After denying Mr. Harris’s motion to appoint

counsel, the district court dismissed the due-process claims with prejudice,

concluding that they are barred by the statute of limitations. And it dismissed the

equal-protection claim without prejudice after allowing Mr. Harris to amend his

application to provide additional essential information.

                                     II. Discussion

                                        A. COA

      A state prisoner seeking to appeal a district court’s denial of a § 2241

application must obtain a COA before we may consider the merits of the appeal. See

Miller-El v. Cockrell, 

, 335–36 (2003); Montez v. McKinna, 

, 869 (10th Cir. 2000). We may issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

This standard requires a petitioner to “show 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.” 

(brackets and internal

quotation marks omitted). When a district court denies a habeas petition on

procedural grounds, however, the petitioner must show that reasonable jurists could

debate not only whether the petition states a valid constitutional claim but also

whether the district court’s procedural ruling is correct. See Slack v. McDaniel,

, 484 (2000).

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      Reasonable jurists could not debate the propriety of the district court’s

procedural ruling on Mr. Harris’s due-process claims. His § 2241 claims are subject

to a one-year statute of limitations. See Burger v. Scott, 

, 1138

(10th Cir. 2003). This one-year period begins to run, as relevant here, on “the date

on which the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(D).

Although Mr. Harris’s due-process claims arise from his 2015 disciplinary hearing,

the district court determined that one of the claims—the one alleging that no one told

him an escape conviction would make him ineligible for parole—could have accrued

as late as March 21, 2017, when he learned he is ineligible for parole. The district

court correctly concluded that a pending state habeas proceeding tolled the statute of

limitations from February 26, 2018, through April 4, 2019. See 28 U.S.C.

§ 2244(d)(2). And it further correctly concluded that after the state-court proceeding

ended on April 4, 2019, Mr. Harris had 24 days remaining to file his application.

Mr. Harris did not file his § 2241 application, however, until September 2019.

      Mr. Harris’s tolling arguments cannot save his due-process claims from the

statute of limitations. He argues that the district court did not receive motions in

which he described circumstances that entitle him to equitable tolling from

February 2, 2016, until July 14, 2016. In addition, he says, he pursued administrative

remedies for his escape conviction, a pursuit that further tolled the limitations period.

He concludes, then, that his claims did not accrue until March 21, 2017. But as we



                                            4
explained, even if his due-process claims did not accrue until March 21, 2017, they

are still barred by the statute of limitations.2

       Nor could reasonable jurists debate whether the district court correctly

dismissed Mr. Harris’s equal-protection claim. To prevail on his class-of-one equal-

protection claim, Mr. Harris must show that others “similarly situated in every

material respect were treated differently.” Kansas Penn Gaming, LLC v. Collins,

, 1216 (10th Cir. 2011) (internal quotation marks omitted). A

Wyoming prisoner is ineligible for “parole on a sentence if, while serving that

sentence,” the prisoner has assaulted with a deadly weapon any officer, employee, or

inmate of an institution; or escaped, attempted to escape, or assisted others to escape.

Wyo. Stat. Ann. § 7-13-402(b). The parole board determines whether an inmate has

committed a disqualifying act. Wyo. Bd. of Parole Policy and Procedure Manual, 36,

§ II.C.1 (2018). The district court gave Mr. Harris an opportunity to amend his

application to satisfy the similarly-situated requirement by providing for the

allegedly paroled prisoners “at least each person’s criminal history, disciplinary

history, length of time served before parole, mental health needs or risks, educational


       2
         The district court did not specifically decide when Mr. Harris’s good-time
claim accrued. To the extent he asserts that his loss of good time violated his
due-process rights, he appears to argue that this violation occurred during the 2015
disciplinary proceeding. R. at 13 (asserting that “the disciplinary [proceeding]
involved” the removal of good time that a judge had granted). And Mr. Harris did
not allege in his application, or in his submissions to us, that this claim accrued later
than July 21, 2015, when his disciplinary conviction was upheld, let alone later than
March 21, 2017, when the parole board ordered that he is ineligible for parole.
Reasonable jurists could not debate whether the court correctly dismissed that claim
as untimely.
                                              5
or programming achievements, and date of parole.” R. at 178 (internal quotation

marks omitted). Yet Mr. Harris’s amended application does not allege such facts or

any facts showing that any of the six inmates with whom he compares himself was

determined by the parole board to have committed a disqualifying act and was

nevertheless granted parole on the sentence he was serving when he committed the

act. Because Mr. Harris’s amended application does not allege facts showing he is

similarly situated to any of the six inmates, he has not made a substantial showing of

an equal-protection violation. See Kansas Penn 

.

Mr. Harris complains that the information required by the district court was not

available to him. But it would have been improper for the court to speculate about

those matters. And the court’s dismissal was without prejudice.

                                B. Motion for Counsel

      Mr. Harris does not need a COA to appeal the district court’s order denying his

motion for counsel. See Harbison v. Bell, 

, 183 (2009). The district

court denied his motion after considering the facts that Mr. Harris alleged, the legal

arguments, and the stage of the case. “The decision to appoint counsel is left to the

sound discretion of the district court.” Engberg v. Wyoming, 

, 1122

(10th Cir. 2001). We see no reason to disturb the district court’s decision, especially

given our assessment of the merits of Mr. Harris’s claims.




                                           6
                                   III. Conclusion

      We deny Mr. Harris’s request for a COA, affirm the district court’s order

declining to appoint counsel, and dismiss the balance of this matter.



                                           Entered for the Court


                                           Harris L Hartz
                                           Circuit Judge




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