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

### DEC 14 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PATRICK ALONZO HINES, Petitioner - Appellant,

vs. MIKE ADDISON, Respondent - Appellee. No. 04-6210 (D.C. No. 04-CV-342-F) (W.D. Okla.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges.

Petitioner-Appellant Patrick Alonzo Hines, an Oklah oma inmate appearing pro se, seeks a certificate of appealability (“COA” ) permitting him to appeal the district court’s order denying his petition for a w rit of habeas corpus pursuant to 28 U.S.C. § 2254. Because we determine that Mr. Hi nes has not made “a substantial showing of the denial of a constitution al right,” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel , 529 U.S. 473, 484 (2000), we deny a COA and dismiss this appeal. Mr. Hines pleaded guilty to two counts of first-deg ree rape on November 24, 1987, in Oklahoma district court and is current ly serving two life sentences.- 2 -

Subsequent to his incarceration, Mr. Hines apparent ly completed a residential sex offender treatment (“RSOT”) program. In 2003, Mr. Hines applied for postconviction relief in state court seeking resentenci ng to a “balanced suspended sentence” on the basis of his completion of the RSO T program. On January 14, 2004, the Oklahoma district court denied his applic ation. The court held that Mr. Hines had failed to demonstrate an intervening chan ge in law that would require resentencing and that matters related to parole eli gibility were outside the court’s jurisdiction. The district court’s order was affirmed by the Oklahoma Court of Criminal Appeals (“OCCA”) on February 26, 2004. On March 19, 2004, Mr. Hines timely filed his feder al habeas petition. Mr. Hines alleged that the Oklahoma courts violated his equal protection and due process rights under the Fourteenth Amendment to th e Constitution. Mr. Hines also alleged that the Oklahoma courts failed to mak e proper findings of fact and conclusions of law in addressing factual issues in dispute in his application for post-conviction relief. Petition at 7. The federa l district court referred Mr. Hines’ petition to a magistrate judge, who issued areport and recommendation concluding that the petition should be denied. Ove r Mr. Hines’ objection, the district court adopted the report and recommendatio n in its entirety. The district court subsequently denied Mr. Hines’ request for a COA. In his application for a COA before this court, as he did in his habeas1 Mr. Hines also appears to assert for the first time in his application for a

COA that an Oklahoma judge’s discretion to suspend an inmate’s sentence after successful completion of the RSOT program runs afou l of the United States Supreme Court’s recent decision in Blakely v. Washi ngton , ___ U.S. ___, 124 S.Ct. 2531 (2004). Blakelyheld unconstitutional a Washington statute that permitted a judge to enhance a criminal sentence without the defendant’s admission or a jury finding of predicate culpability. No such constitutional interest is implicated when a judge uses his discre tion to suspend a criminal sentence. - 3 - petition, Mr. Hines alleges that the Oklahoma court s and Department of Corrections violated his Equal Protection and Due P rocess rights by suspending portions of sentences of inmates convicted of childmolestation or rape upon completion of the RSOT program while denying the same to inmates convicted of adult rape, African Americans, and others. 1 Mr. Hines raised similar issues in an action under 42 U.S.C. § 1983 that was previously d ismissed by this court. Hines v. Jenks , No. 03-6298, 2004 WL 318721 (10th Cir. Feb. 20, 2 004) (unpublished). Mr. Hines also seeks an evidentiary hearing before the district court to further support his allegations of disparate treatment. We note at the outset that Mr. Hines’ constitutiona l claims, although further embellished here, were first raised before the Oklahoma courts in his application for post-conviction relief. Under the habeas statute, federal courts must defer to state court decisions on the merits unless the proc eedings “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). While the state court- 4 -

adjudication must be on the merits, our deference e xtends to summary decisions that dispose of a petitioner’s claim without fully articulating the court’s reasoning. See Aycox v. Lytle , 196 F.3d 1174, 1177-78 (10th Cir. 1999). Here, we believe the OCCA reached the merits of Mr. Hines ’ constitutional claims, and found them wanting. Our decision is premised on th e fact that the court referenced Mr. Hines’ disparate impact argument in its Order, although it summarily affirmed the Oklahoma district court’s de cision. Hines v. Oklahoma , No. PC 2004-0074, Order at 1 (Okla. Crim. App. Feb. 26, 2004) (unpublished). Although we believe this case might have been dispo sed of by deferring to the OCCA, after an “independent review of the record an d pertinent federal law,” Aycox , 196 F.3d at 1178, the district court chose to add ress the merits of Mr. Hines’ petition. For this court to grant a COA, Mr. Hines must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C . § 2253(c)(2); see Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). When, as in this case, the district court has denied a claim on the merits, the petitioner must d emonstrate “‘that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different matter or that th e issues presented were adequate to deserve encouragement to proceed furthe r.’” Miller-El , 537 U.S. at 336 (quoting Slack , 529 U.S. at 484). We do not believe that the dis trict court’s2 We note that Mr. Hines includes “African Americans” in the purported

class of sex offenders allegedly subject to disparate treatment. Discrimination based on race is inherently suspect. See Soskin v. Reinertson , 353 F.3d 1242, 1248 (10th Cir. 2004). However, construing the pro se petitioner’s filings liberally, as we must, Cannon v. Mullin , 383 F.3d 1152, 1160 (10th Cir. 2004), we do not find that Mr. Hines alleges discriminatio n based on race. Instead, fairly construed, the purported class relevant to o ur examination includes inmates convicted of raping adult victims. - 5 - determinations are fairly debatable. Under equal protection analysis, sex offenders are not a suspect class, 2 Lustgarden v. Gunter , 966 F.2d 552, 555 (10th Cir. 1992), nor is there a fundamental right at issue in this case. Thus, und er a rational basis inquiry, Mr. Hines bears the burden of establishing that the dis tinction between himself and other inmates was not reasonably related to a legit imate state purpose. Templeman v. Gunter , 16 F.3d 367, 371 (10th Cir. 1994). Mr. Hines has not met this burden. His argument fails to acknowledge or confront the state’s legitimate interest in regulating the release of convicted sexoffenders and penological reasons that might undergird the state court’s refu sal to resentence in this case. Further, Mr. Hines has failed to identify an Oklah oma statute that mandates resentencing or creates a sufficient interest to tr igger heightened Fourteenth Amendment scrutiny. Finally, while the district court did not specifica lly address Mr. Hines’ request for an evidentiary hearing in its Order, th e record readily discloses that he- 6 -

is not entitled to such a hearing in a federal proc eeding. We review the denial of an evidentiary hearing for abuse of discretion, Vig il v. Zavaras , 298 F.3d 935, 943 (10th Cir. 2002), and no such abuse is demonstr ated here. Accordingly, the application for a COA is DENIED an d the appeal is
DISMISSED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge