* Honorable Wesley E. Brown, Senior District Judge, U nited States District

Court for the District of Kansas, sitting by design ation.

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
MONTY RAY STILL,

Petitioner-Appellant,

v. KEN KLINGER; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 98-6227

ORDER Filed August 4, 1999

Before ANDERSON and KELLY , Circuit Judges, and BROWN , * Senior District Judge.
Respondents-Appellees have filed a petition for reh earing from this court’s order of July 2, 1999. The materials submitted by respondents have been re viewed by the members of the hearing panel, who conclude that the original disposition was incorrect. Accordingly, the petition is granted. The order and judgment of July 2, 1999, is withdrawn and the attached order and judgm ent is substituted.2 Entered for the Court, PATRICK FISHER, Clerk of Court By: Keith Nelson Deputy Clerk* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 4 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
MONTY RAY STILL,

Petitioner-Appellant,

v. KEN KLINGER; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 98-6227 (D.C. No. 98-CV-135) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 This court previously granted Still a certificate of appealabilityand ordered

briefing from respondent as to his ex post facto issue . 2 this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner Monty Ray Still appeals from an order of the district court denying his petition for habeas relief filed pursuant to 28 U.S.C. § 2254 . We affirm. 1 In 1994, Still was sentenced to fifteen-year concur rent sentences under the Oklahomastatute providing for an enhanced sentence after f ormer conviction of a felony following his plea of guilty to charges of u nlawful distribution of marijuana and a controlled dangerous substance. He took no direct appeal. In 1997, Oklahomaenacted the Truth in Sentencing Act which changed the sentencing matrix for various crimes and modified p arole and early release guidelines. Still then filed for post-conviction relief alleging that his due process rights and liberty interests had been violated whenhe was denied the opportunity for early parole under programs which existed priorto passage of the new Act. Still also contended the Act violated the ex post facto clause of the United States Constitution. Still concluded he was entitled to amodification of his sentence under the new Act and parole under the provisions o f the prior acts. The Oklahoma Court of Criminal Appeals denied relief and Still2 Still filed this petition January 27, 1998. There fore, the provisions of the

Antiterrorism and Effective Death Penalty Act of 19 96 ("AEDPA") apply. 3 commenced this § 2254 action in federal district court. The federal cou rt denied relief on the basis that Still had not raised any c onstitutional claims upon which he could obtain relief. On appeal, Still claims th at the Act violates his ex post facto rights by eliminating the early release progr ams under which he had been approved for release. On appeal from the district court’s denial of a hab eas petition, we review the district court’s factual findings for clear err or and its legal conclusions de novo. See Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 19 99). However, we may grant habeas relief only if the state court’ s decision was “contrary to, or involved an unreasonable application of, clearly es tablished Federal law, as determined by the Supreme Court of the United State s; or . . . resulted in a decision that was based on an unreasonable determin ation of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). 2 The district court correctly ruled that Still state d no viable claim as far as he requests modification of his sentence. Oklahomaprisoners are not entitled to resentencing under the new Act. See Nestell v. Klinger , No. 98-6148, 1998 WL 544361, at **1 (10th Cir. Aug. 27, 1998); see, e.g. , Castillo v. State , 954 P.2d4

145, 147 (Okla. Crim. App. 1998) (sentencing matric es of new Act do not become effective until July 1, 1998 and do not inflict gre ater punishment, thus, no ex post facto violation could occur); Nestell v. State , 954 P.2d 143, 144-45 (Okla. Crim. App. 1998) (same). Still also contends that he had been approved for p arole under the repealed acts and has since been denied release based on pro visions on the new Act which have been applied retroactively to him. He also co ntends he relied on the availability of the prior early release statutes wh en deciding to plead guilty. Retroactive application of an act that inflicts “a greater punishment, than the law annexed to the crime, when committed,” is p rohibited under the Ex Post Facto Clause. Lynce v. Mathis , 519 U.S. 433, 441 (1997) (quotation omitted). Such an application implicates “the central concerns of the Ex Post Facto Clause: the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated.” Id. (quotation omitted). The Oklahoma legislature enacted the early release programs at issue here in 1993. Still committed the crimes to which he pl ed guilty in 1992. The elimination in 1997 of the early release programs d id not increase the punishment prescribed at the time Still committed his criminal acts and, therefore, did not offend the Ex Post Facto Clause. See Weaver v. Graham , 450 U.S. 24, 30-315

(1981); see also Woods v. Klinger , No. 98-6185, 1999 WL 79398 (10th Cir. Feb. 19, 1999), petition for cert. filed , No. 98-9900 (U.S. June 18, 1999) . A decrease in potential benefits after incarceration does not amount to an increase in the punishment prescribed at the time the act was c ommitted. Accordingly, the judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.

Entered for the Court

Wesley E. Brown Senior District Judge* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Wesley E. Brown, Senior District Judge, U nited States District Court for the District of Kansas, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 2 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
MONTY RAY STILL,

Petitioner-Appellant,

v. KEN KLINGER; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees. No. 98-6227 (D.C. No. 98-CV-135) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 This court previously granted Still a certificate of appealabilityand ordered

briefing from respondent as to his one issue . -2- this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner Monty Ray Still appeals from an order of the district court denying his petition for habeas relief filed pursuant to 28 U.S.C. § 2254 . We affirm in part and reverse in part and remand. 1 In 1994, Still was sentenced to fifteen-year concur rent sentences under the Oklahomastatute providing for an enhanced sentence after f ormer conviction of a felony following his plea of guilty to charges of u nlawful distribution of marijuana and a controlled dangerous substance. He took no direct appeal. In 1997, Oklahomaenacted the Truth in Sentencing Act which changed the sentencing matrix for various crimes and modified p arole and early release guidelines. Still then filed for post-conviction relief alleging that his due process rights and liberty interests had been violated whenhe was denied the opportunity for early parole under programs which existed priorto passage of the new Act. Still also contended the Act violated the ex post facto clause of the United States Constitution. Still concluded he was entitled to amodification of his sentence under the new Act and parole under the provisions o f the prior acts.2 Still filed this petition January 27, 1998. There fore, the provisions of the

Antiterrorism and Effective Death Penalty Act of 19 96 ("AEDPA") apply. -3- The Oklahoma Court of Criminal Appeals denied relief and Still commenced this § 2254 action in federal district court. The federal cou rt denied relief on the basis that Still had not raised any c onstitutional claims upon which he could obtain relief. On appeal, Still claims th at the Act violates his ex post facto rights by eliminating the early release progr ams under which he had been approved for release. On appeal from the district court’s denial of a hab eas petition, we review the district court’s factual findings for clear err or and its legal conclusions de novo. See Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 19 99). However, we may grant habeas relief only if the state court’ s decision was “contrary to, or involved an unreasonable application of, clearly es tablished Federal law, as determined by the Supreme Court of the United State s; or . . . resulted in a decision that was based on an unreasonable determin ation of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). 2 The district court correctly ruled that Still state d no viable claim as far as he requests modification of his sentence. Oklahomaprisoners are not entitled to resentencing under the new Act. See Nestell v. Klinger , No. 98-6148, 1998 WL-4-

544361, at **1 (10th Cir. Aug. 27, 1998); see, e.g. , Castillo v. State , 954 P.2d 145, 147 (Okla. Crim. App. 1998) (sentencing matric es of new Act do not become effective until July 1, 1998 and do not inflict gre ater punishment, thus, no ex post facto violation could occur); Nestell v. State , 954 P.2d 143, 144-45 (Okla. Crim. App. 1998) (same). However, Still also contends that he had been appro ved for parole under the repealed acts and has since been denied release bas ed on provisions on the new Act which have been applied retroactively to him. He also contends he relied on the availability of the prior early release statute s when deciding to plead guilty. We have previously held that petitioners situated a s Still have stated claims that may constitute a violation of the ex post facto clause. See McMeekan v. Klinger , No. 98-6247, 1998 WL 852551, at **1 (10th Cir. Dec. 10, 1998) ; Blue v. Klinger , No. 98-6159, 1998 WL 738341, at **2 (10th Cir. Oct. 22, 1998); cf. Moore v. Klinger , No. 98-6266, 1999 WL 50828, at **2, n.4 (10th Cir . Feb. 3, 1999) (affirming that petitioner had failed to stat e a viable claim as to his ex post facto argument because he had “failed to show his e ntitlement to, or projected participation in” the pre-release programs under th e repealed statutes). Thus, if Still can establish he was entitled to pre -parole or early release under the law as it existed prior to passage of the Truth in Sentencing Act, “the Act’s elimination of those programs would in fact c onstitute a violation of the Ex-5-

Post Facto Clause.” Blue , 1998 WL 738341, at **2 (citing Lynce v. Mathis , 519 U.S. 433, 445 (1997); Weaver v. Graham , 450 U.S. 24, 35-36 (1981)); see also Warden v. Marrero , 417 U.S. 653, 663 (1974) (“[R]epealer of parole e ligibility previously available to imprisoned offenders would clearly present [a] serious question under the ex post facto clause . . . of whether it imposed a greater or

more severe punishment than was prescribed by law at the time of the . .

. offense.” (quotation omitted)). Accordingly, the judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED in part an d REVERSED in part. This case is REMANDED to the district court for further proceedings consistent with this order and judgment.

Entered for the Court

Wesley E. Brown Senior District Judge