*This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 7 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROLAND DANIEL FOSTER,

Petitioner-Appellant,

v.

RONALD J. CHAMPION, Warden;

LARRY A. FIELDS, Director; J.R.

PEARMAN, Judge; and THE

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Respondents-Appellees.

No. 96-5076

(D.C. No. 95-C-325-BU)

(N. Dist. Okla.)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9.
-2-

Roland D. Foster filed a pro se petition for habeas corpus relief under 28

U.S.C. § 2254, alleging that the method by which the Oklahoma Department of

Corrections calculated his earned time credits violated the Equal Protection and

Ex Post Facto Clauses of the Constitution. The district court adopted the report

and recommendation of the magistrate judge that relief be denied, and also denied

Mr. Foster’s motion for a certificate of probable cause. On appeal, we construed

Mr. Foster’s notice of appeal as a request for a certificate of probable cause. 

The district court order denying relief, its order denying a certificate of

probable cause, and Mr. Foster’s notice of appeal were all filed before April 24,

1996, the date on which President Clinton signed into law the Antiterrorist and

Effective Death Penalty Act, Pub.L. No. 104-132, 110 Stat. 1214 (1996). Section

102 of the new Act “requires a state prisoner appealing a denial of a § 2254

petition to obtain a certificate of appealability instead of a certificate of probable

cause.” Lennox v. Evans, 87 F.3d 431, 432 (10th Cir. 1996), cert. denied, 1996

WL 665079 (U.S. Jan. 13, 1997). In Lennox we held that “[b]ecause the standard

governing the issuance of a certificate of appealability requires the same showing

as that for obtaining a certificate of probable cause, application of § 102 of the

Act to Petitioner’s request for a certificate of probable cause would not constitute

retroactive operation of a statute.” Id. at 434. Accordingly, we must determine

whether Mr. Foster has made a substantial showing of the denial of a
1

 Mr. Foster has filed with this court a request for a temporary restraining

order asserting that he is being transferred to an institution at which he is not able

to earn credits and that his legal mail has been tampered with, both in retaliation

for the filing of this suit. If Mr. Foster wishes to pursue this matter, which is in

the nature of a civil rights complaint, he must first do so in the district court. The

request for a restraining order is denied.

-3-

constitutional right as required under 28 U.S.C. § 2253, as amended by section

102 of the new Act. Id.

In his petition, Mr. Foster asserts that the calculation of his earned time

credits violated his constitutional rights in several regards. The nub of his claims

is that he is entitled to have his credits calculated under both the statutory scheme

applicable at the time he committed his crimes and the scheme as modified in

1988. We have carefully reviewed the magistrate’s report and recommendation,

the district court’s order, and the record in light of Mr. Foster’s arguments and

authorities. We conclude that Mr. Foster has failed to make a substantial showing

of the denial of a constitutional right for the reasons set forth in the magistrate’s

report and recommendation and the district court’s order.1 

Accordingly, we DENY the issuance of a certificate of appealability and

DISMISS the appeal. The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge