UNITED STATES COURT OF APPEALS TENTH CIRCUIT

DONALD GENE RICHARDSON, Petitioner - Appellant,

v. TRACY McCOLLUM, Warden, OSR, Respondent - Appellee. No. 15-6055 (D.C. No. 5:15- CV-00185-W) (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before KELLY , LUCERO , and McHUGH , Circuit Judges.

Donald Richardson, an Oklahoma state prisoner proceeding pro se, 1 appeals the district court’s denial of hi s 28 U.S.C. § 2241 habeas petiti on and its determination that the Oklahoma Department of Corrections (the ODOC) did not violate the Ex Post Facto Clause of the United States Constitution when it applied a regulation adopted in 1997 to

* This order and judgment is not binding precedent, exce pt under the doctrines of law of the case, res judicata, and collateral estoppel.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.

1 Because Mr. Richardson appears pro se , we liberally construe his filings. See Yang v. Archuleta , 525 F.3d 925, 927 n.1 (10th Cir. 2008); Hall v. Scott , 292 F.3d 1264, 1266 (10th Cir. 2002). But “this ru le of liberal construction stops . . . at the point at which we begin to serve as his advocate.” United States v. Pinson , 584 F.3d 972, 975 (10th Cir. 2009). FILED United States Court of Appeals Tenth Circuit 

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Elisabeth A. Shumaker Clerk of Court2 determine Mr. Richardson’s class level for purposes of calculating the amount of class level credits that could be applied against hi s sentence. According to Mr. Richardson, the 1997 amendments impermissibly relied on a 1975 escape charge to preven t him from attaining class 3 or 4 status and thereby qu alifying for the higher class-level credits available at those levels. For the reasons explained below, we deny relief. BACKGROUND I. Mr. Richardson has a significant criminal hi story, involving both state and federal offenses. In 1975, whil e in the custody of the ODOC, th e State of Oklahoma charged him with escape from a penal institution. A lthough the escape charge remained on Mr. Richardson’s prison record, he claims a dist rict court in Atok a County, Oklahoma, dismissed the related criminal charges in 1984 for failure to prosecute. In approximately 1976, Mr. Richardson was convicted of further state and federal crimes. He began servi ng his federal sentence at that time, with the state sentence ordered to commence thereafter. In 2 012, after serving over 36 y ears in federal custody, Mr. Richardson was transferred to the ODOC’s custody to serve his state sentence. A. Oklahoma Class Level Credit Procedures Under Oklahoma’s current statutory sche me, the ODOC assigns each inmate a class level which governs the amount of cl ass-level credits available to reduce the inmate’s period of incarceration. See Okla. Stat. tit. 57, § 138(A) (providing that the number of credits an inmate can receive against his term of imprisonment is based on his classification in one of four class levels). The number of credits avai lable increases as an inmate’s class level rises. For example, an inma te classified at a leve l 1 is entitled to no3 credits and a level 2 inmate is eligible to receive 22 class-level credits per month; whereas an inmate classified at a level 3 or 4 can receive up to 33 and 44 class-level credits per month, respectively. Id. § 138(D)(2)(a). Each earned credit is equal to one day of incarceration for purposes of calculating the days served. Id. § 138(A); Smith v. Scott , 223 F.3d 1191, 1193 (10th Cir. 2000). The ODOC has promulgated regulations to implement this classification system. In 1997, it amended one such re gulation to provide that inmate s with active escape points are ineligible to reach a level 3 or 4 cla ssification until those points expire (the 1997 Amendment). See Smith , 223 F.3d at 1194 (citing OP -060213(III)(C)(2) (1997)). Under the ODOC’s policy in place at the time Mr. Rich ardson returned to the ODOC’s custody, an inmate with active escape points was ineligible to advance beyond a level 2 classification for a five-year period. OP-060107(I)(B)(2)(c) (2013). Relying on Mr. Richardson’s 1975 escape, the ODOC de emed him ineligible for a level 3 or 4 classification. In contrast, at the time of Mr. Richards on’s crimes and his 1975 escape charge, Oklahoma had not yet promulgated the cla ssification system and the ODOC had not adopted the current rule. See State v. Wood , 624 P.2d 555, 557 (Okla. Crim. App. 1981) (recognizing that the statutory scheme in 1975 provided for mandato ry pre-crediting for work and good behavior as applied against the full term of a defendant’s sentence, so long as the inmate had “no infractions of th e rules and regulations of the prison or the laws of the State”). Thus, the regulation impl ements a substantive change that was not4 foreseeable in 1975. See Smith , 223 F.3d at 1196 (holding that the regulation’s use of escape points was a substantive ame ndment that was not foreseeable).
B. Prior Proceedings on Mr. Richards on’s Petition fo r Habeas Relief Mr. Richardson filed a petition for relief under 28 U.S.C. § 2241 in the United States District Court for the Western Dist rict of Oklahoma, alleging his class level assignment violated the Ex Post Facto Clau se because it was based on an escape that occurred, if at all, long before the adoption of the cu rrent statute and regulation. Proceeding without requestin g a response from the Respondent, a United States Magistrate Judge considered Mr. Richardson ’s claims on the merits and recommended that the district court dismiss his petition. Th e magistrate judge reasoned that although the ODOC had amended its policy in 1997, it first applied the amended policy to Mr. Richardson when he was committed into state custody in 2012. Thus, the magistrate judge concluded Mr. Richardson had not esta blished that the ODOC had retroactively applied the 1997 Amendment to him. Over M r. Richardson’s objection, the district court adopted the magistrate judge’s Repor t and Recommendation and denied Mr. Richardson’s habeas petition. The district cour t also denied Mr. Richardson a Certificate of Appealability (COA) and de nied his motion to proceed in forma pauperis (IFP). Mr. Richardson sought permission from this court to appeal the district court’s denial of habeas relief. But to do so, Mr. Richardson had to first obtain a COA, which required him to make “a substa ntial showing of the denial of a constitutional right.” 2 28

2 In his request for COA, Mr. Richardson also claimed the ODOC lacked evidence of the 1975 escape. But he expressly descri bed “his single substantive argument” in5 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (recognizing that issuance of a COA is a jurisdictional prerequisite); Montez v. McKinna, 208 F.3d 862, 867 (10th Cir. 2000) (holding “that a state prisoner must obtain a COA to appeal the denial of a habeas petition, whether such petition was filed purs uant to § 2254 or § 2241”). Thus, Mr. Richardson was required to demonstrate that jurists of reason could disagree with the district court’s resolution of his constitutional claims or that such jurists could conclude the issues presented are ade quate to deserve encouragement to proceed further. Miller-El , 537 U.S. at 336. Although this is a demanding standard, Mr. Richardson’s entitlement to a COA was not de pendent upon a showin g that his appeal would ultimately succeed. Id. at 337. C. Order Granting COA and Requesting Further Briefing This court granted Mr. Richardson a COA because jurists of reason could disagree with the district court’s analysis of his ex po st facto claim. A law im plicates the Ex Post Facto Clause when it is applied retroactivel y and disadvantages th e petitioner by altering the definition of criminal conduct or increasi ng the punishment for a crime after the crime has been committed. Smith , 223 F.3d at 1194. Thus, the proper reference point for assessing whether a law has been retroactively applied is the time of the criminal activity. support of his request for relief as the ODOC ’s “imposing its own administrative policies against its inmate population in violation of the ex post facto clause, and . . . this Court[’]s Ruling in Smith [v]. Scott, 223 F.3d 1191, C.A. 10 Okla. (2000).” Any objection to the evidentiary supp ort for the 1975 escape char ge is therefore waived and we limit our analysis to the ex post fa cto implications of the ODOC policy. See Utahns for Better Transp. v. U.S. Dep’t of Transp. , 305 F.3d 1152, 1175 (10th Cir. 2002) (“[I]ssues will be deemed waived if they are not adequately briefed.”), modified on rehr’g , 319 F.3d 1207 (10th Cir. 2003).6 See, e.g. , Weaver v. Graham , 450 U.S. 24, 31 (1981) (concl uding that a law altering the availability of credits in prison was retrospe ctive because it attached legal consequences to a crime committed before the law took effect); Smith , 223 F.3d at 1194–96 (holding that the ODOC committed an ex post facto violation when it applied the 1997 Amendment to revoke the credits an inmate had earned after a 1992 attempted escape, because the version of the OD OC policy in effect at th e time of the escape did not provide fair notice of the limitation on an inmate’s classification level). In denying Mr. Richardson’s petition, the district court adopted the magistrate’s conclusion that “[b]ecause [M r. Richardson] did not begin serving his sentence for the Oklahoma County Conviction un til February 2012, [Mr. Richardson] has not shown that he would be entitled to receive earned credits under any version of an ODOC policy in effect prior to the date of his incarcerati on.” Reasonable jurists could debate whether the district court was correct to apply the date Mr. Richardson was delivered to the ODOC’s custody as the pertinent time for assessing retroactivity. But even if the ODOC cla ss-level credit policies were applied retroactively, Mr. Richardson could not establish an ex post facto violation without also showing he was disadvantaged as a result. Because the distri ct court concluded M r. Richardson had not been subjected to the retroac tive application of law, it did not reach the issue of whether he was disadvantaged. And where the Warden was not notified of the proceedings in the district court, he had no opportunity to pr ovide information concerning Mr. Richardson’s earned credits. As a result, th e record on appeal was inade quate to determine whether a retroactive application of the statute and ru le governing class-level credits actually7 disadvantaged Mr. Richardson. Yet, the error in the first step of the ex post facto analysis convinced us that Mr. Richards on had met his burden to be permitted to proc eed further. We therefore granted a COA on Mr. Richar dson’s ex post facto claim. We also directed the Warden to enter an appearance in this court and requested briefing from him on two issues: First, whether the magistrate ju dge and district court had correctly used the 2012 date when Mr. Richards on was admitted to the ODOC ’s custody as the reference for determining whether he had been subject ed to a retroactive application of law. Second, whether Mr. Richardson had been di sadvantaged by the application of the 1997 version of the classifica tion scheme to him.
D. Supplemental Briefing in this Court The Warden filed a brief in response to our Order in which he declined to address whether the district court had correctly dete rmined that the statute and rule were not retroactively applied to Mr. Richardson becaus e they were in effect when he was remitted to the custody of the ODOC in 2012. Instead, the Warden argu ed resolution of that issue was unnecessary to resolve Mr. Richardson’s ex post facto claim because he had not been disadvantaged. In support, the Warden expl ained that pursuant to current policy, the ODOC calculated Mr. Richardson’s credits unde r both the system as it existed at the time of his conviction and under the current cla ssification system and then awarded him the greater number of credits. The Warden then revi ewed Mr. Richardson’s earned credit history, illustrating the application of this policy. With one excep tion, the Warden claims the ODOC gave Mr. Richardson earned credits equal to or greater than he could have earned even if he had8 been assigned to the highest classificati on level under the current system. For the period from January 2014 thro ugh June 2014, the W arden admits Mr. Richardson’s credits, if calculated at level 4, would have been 86 credits higher than the amount the ODOC allocated to him for this p eriod. But the Warden claimed Mr. Richardson has now been awarded additional credits to bring Mr. Richard son’s credits to the amount he could have earned, if classified at level 4. The Warden states that Mr . Richardson was assigned to an Oklahoma Correctional Industries (OCI) job in July 2014 “and has earned in excess of 44 earned credits every month sin ce.” Accordingly, the Warden contends Mr. Richardson has not been disadvantaged and th at his ex post facto claim fails. In reply, Mr. Richardson takes issue w ith the assertion he has not been disadvantaged. Although Mr. Ri chardson concedes the ODOC has now awarded him the greater of the credits available under the tw o systems, he argues the ODOC’s refusal to advance him to level 3 or 4 based on the 1975 escape ch arge will leave him greatly disadvantaged “if he is fi red from his prison OCI Job.” ANALYSIS II. A law does not implicate the ex post facto clause unless it is both applied retrospectively and disadvantag es the offender “by altering the definition of criminal conduct or increasing the p unishment for the crime.” Lynce v. Mathis , 519 U.S. 433, 441 (1997). Where the retroactive application of a prison policy does no t actually increase the punishment for the crime, it does not gi ve rise to an ex post facto claim. See California Dep’t of Corr. v. Morales, 514 U.S. 499, 512 (1995) (h olding that policy change decreasing frequency of parole hearings did not implicate the ex post facto clause9 because there was “no reason to conclude that the amendment will ha ve any effect on any prisoner’s actual term of confinement”). Although Mr. Richardson ra ises the speculative possi bility that he will be disadvantaged in the future, he concedes that the ODOC has thus far awarded him credits in a manner that affords him the greater of the credits available under the two systems. See id. at 509 (“The amendment creates only the most speculative and attenuated possibility of producing the proh ibited effect of increasing the measure of punishment for covered crimes, and such conjectural effect s are insufficient under any threshold we might establish under the Ex Post Facto Clau se.”). Thus, he fails to allege that his sentence has been effectively lengthened. 3
Where Mr. Richardson does not claim to be presently disadvantaged, he cannot establish a violation of th e constitutional protection agai nst ex post facto laws. See Sandin
v. Conner , 515 U.S. 472, 486–87 (1995) (rejecti ng prisoner’s claim that disciplinary action resulting in segregated confinement viol ated his due process rights where it did not “inevitably affect the dur ation of his sentence”); Clifton v. Oklahoma , 117 F. App’x 667, 669 (10th Cir. 2004) (unpublished opinion) (hol ding there was no ex post facto violation where an inmate was classified as a leve l 2 offender on the basis of a 1984 escape conviction because the inmate could not show that his sentence was effectively

3 Because Mr. Richardson has raised only an ex post facto claim, we express no opinion on the due process implic ations of the ODOC’s policies. See infra., note 2.10 lengthened due to application of the clas sification system or 1997 Amendment). 4 Although future events may resul t in a disadvantage to Mr. Ri chardson as a result of the retroactive application of the ODOC policy, at this time his ex post facto claim fails. CONCLUSION III. For the foregoing reasons, we DENY Mr. Ri chardson’s 28 U.S.C. § 2241 habeas petition and AFFIRM the decision of the di strict court, albeit on other grounds.

Entered for the Court
Carolyn B. McHugh Circuit Judge

4 Although not binding, we find unpublis hed decisions from this court to be persuasive. See 10th Cir. R. 32.1(A) (“Unpublishe d decisions are not precedential, but may be cited for their persuasive value.”).