* This order and judgment is not binding precedent, e xcept under the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 

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

### DEC 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DANNY JOE McMEEKAN,

Petitioner - Appellant, No. 98-6247

v. (W.D. Oklahoma) KEN KLINGER,

Respondent - Appellee. (D.C. No. CIV-98-463-L)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.

Danny Joe McMeekan, an Oklahoma state prisoner appe aring pro se, seeks a certificate of appealability to appeal the district court’s dismissal of his 281 We note that 28 U.S.C. § 1915(a)(2) and (b) do not apply to § 2254

proceedings. United States v. Simmonds , 111 F.3d 737, 744 (10th Cir. 1997).

2 Apparently, McMeekan has now completed the three ye ar term of imprisonment for his original offense, petit larceny. See Order Affirming Denial of Post-Conviction Relief (Okla. Crim. App.), R. Vo l. I, Doc. 1, Exh. at 1. - 2 - U.S.C. § 2254 habeas petition. McMeekan also seeks leave to appeal in forma pauperis. 1 We grant leave to proceed in forma pauperis; we g rant a certificate of appealability; and we affirm in part, reverse in pa rt and remand for further proceedings. On March 8, 1996, McMeekan pleaded guilty to posses sion of marijuana and to escape, 2 and he was sentenced to seven years’ imprisonment on each conviction. Although he did not directly appeal, h e eventually initiated state court post-conviction proceedings, based upon a cla im to relief which “rest[ed] entirely upon an argument that he [was] being denie d equal protection,” in that he had received a harsher sentence than similarly situ ated persons who would be sentenced under Oklahoma’s newly enacted Truth In S entencing Act, 1997 Okla. Sess. Laws ch. 133. R. Vol. I, Doc. 1, Exh. at 2. On February 5, 1998, the Oklahoma Court of Criminal Appeals affirmed the state district court’s denial of McMeekan’s petition. Id. , Doc. 1, Exh. Following the adverse state court decision, McMeekan filed a § 2254 petition in federal court in the Western District o f Oklahoma, and the case was3 The magistrate judge noted that although McMeekan w as incarcerated in

the Western District, he had been tried in the Northern District of Oklahoma. Thus, the court’s ordinary practice would be to transfer the case–however, since the petition made no cognizable claims, transfer wa s unnecessary. R. Vol. I, Doc. 3 at 2. - 3 - referred to a magistrate judge. 3 Noting that McMeekan’s petition grounds consisted of a single paragraph “which is a copy of a pleading being presented to this Court by several Oklahoma prisoners,” and thatthe “specific allegations of his claims are unclear,” id. , Doc. 3 at 4, nonetheless, the magistrate broadly construed the petition to claim both that McMeekan’ s sentence should be recalculated under the new provisions, and that fai lure to do so constituted a denial of equal protection. Id. , Doc. 3 at 3-4. After a thorough analysis of the state court proceedings and McMeekan’s apparent cla ims, the magistrate judge recommended that the petition be dismissed. Id. , Doc. 3 at 8. McMeekan then filed timely objections, in which, fo r the first time, he raised a claimed Ex Post Facto Clause violation bec ause the new Truth in Sentencing Act eliminated two early release program s for which he claimed qualification. Id. , Doc. 4 at 2. Reciting its “careful review of pla intiff’s objections to the Report and Recommendation, and up on de novo review of the file,” the district court found the objections “ins ufficient to overcome the conclusions of the Magistrate Judge” which the district court adopted. Id. , Doc.
5.4 Because the district court apparently considered th e ex post facto argument

on the merits, we consider it properly before us inthis appeal. - 4 - As to those issues which the magistrate judge consi dered, we find that McMeekan has failed to make a substantial showing o f the denial of a constitutional right, and therefore we decline to i ssue a certificate of appealability. However, we reach a different concl usion on the claimed violation of the Ex Post Facto Clause. 4As we previously indicated in an appeal that rais ed the identical question, Blue v. Klinger , No. 98-6159. 1998 WL 738341 (W.D. Okla. Oct. 22, 1998) (unpublished), “to the extent [petitioner] is asserting the Act’s elimination of pre-parole and early release p rograms violates the Ex Post Facto Clause,” the claim presents a substantial sho wing of the denial of a constitutional right which requires case-specific c onsideration. Id. at *2 (citing Lynce v. Mathis , 519 U.S. 433 (1997), Weaver v. Graham , 450 U.S. 24, 28 (1981), and Raymer v. Enright , 113 F.3d 171, 174 (10th Cir.), cert. denied , 118 S. Ct. 188 (1997)). Accordingly, we GRANT McMeekan’s application to pro ceed in forma pauperis. Because he has made a substantial showin g of the denial of a constitutional right, we GRANT his request for a ce rtificate of appealability. The judgment of the district court is AFFIRMED in part and REVERSED in part, and this matter is REMANDED for further proceedings con sistent with this order.- 5 - ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge