* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This order and judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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 

### JAN 28 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CLAYTON SHANNON FANCHER, Petitioner - Appellant,

v. MARTY SIRMONS, Warden, Respondent - Appellee. No. 02-6329 D.C. No. CIV-02-167-L (W.D. Oklahoma)

ORDER AND JUDGMENT *

Before EBEL , LUCERO and O’BRIEN , Circuit Judges.

In 1991, Petitioner - Appellant Clayton Shannon Fan cher was convicted in Oklahoma state court of conspiracy to traffic in amphetamines and trafficking in methamphetamine. He was sentenced to 27 1⁄2 years imprisonment for each count. Fancher did not directly appeal his conviction, buton September 14, 2001, he filed a petition for a writ of habeas corpus in the District Court of Oklahoma- 2 -

County. That petition was denied, and he appealed the denial to the Oklahoma Court of Criminal Appeals (OCCA). The OCCA conclud ed that it had no jurisdiction to hear Fancher’s appeal because it wa s not filed within 30 days of the state district court order denying his habeas p etition. Proceeding pro se, Fancher filed a petition for a w rit of habeas corpus in the United States District Court for the Western Di strict of Oklahoma on February 11, 2002, citing 28 U.S.C. § 2254 as the statutory basis for his petition. The district court properly considered his petition as arising under 28 U.S.C. § 2241 because Fancher is challenging the execution of his sentence, not the validity of his conviction. See Montez v. McKinna , 208 F.3d 862, 865 (10th Cir. 2000); (Magis. Rep. & Recommendation at 1 n.1.). Accordin g to the Magistrate’s Report and Recommendation, Fancher’s petition raised two i ssues: (1) that the repeal of the Oklahoma Prison Overcrowding Emergency Powers A ct, Okla. Stat. tit. 57, § 570 (1991) (repealed 2001) (the “Act”), operated as a ex post facto law in violation of the United States Constitution; and (2 ) that his Fourteenth Amendment right to due process was violated by the failure of the state to address his claim about the repeal of the Act on the merits . On appeal to us, Fancher insists that he raised a third issue that neither t he magistrate judge nor the district1 Fancher also claims that the magistrate judge and d istrict court did not

consider his claims regarding the alleged prejudice he suffers under the law passed to replace the repealed Prison Overcrowding Emergency Powers Act. (App. for COA at 2.) However, as he indicated in hi s Objection to the magistrate’s judge’s Report and Recommendation, (Ob j. to Magis. Rep. & Recommendation at 7), this is properly considered a s part of ex post facto claim. Therefore, we need not consider this claim separate ly. - 3 - court considered. 1 He claims that the repeal of the Act eliminated, in violation of the Due Process Clause of the Fourteenth Amendment, a state-created liberty interest in early-release credits that could be app lied pursuant to the Act under certain circumstances. We agree that Fancher also raised this third issue because he mentioned it both in his petition and his object ion to the Magistrate’s Report and Recommendation, (B. in Supp. of Pet. at 7; Obj. to Magis. Rep. & Recommendation at 12–13, 17), and because we libera lly construe the allegations of pro se litigants. Hunt v. Uphoff , 199 F.3d 1220, 1223 (10th Cir. 1999). The district court adopted the magistrate judge’s R eport and Recommendation in its entirety over Fancher’s objec tions and denied his petition. Fancher filed a motion with this court to conduct t his appeal in forma pauperis, applies for a certificate of appealability (COA), a nd appeals the dismissal of his petition for a writ of habeas corpus. The districtcourt did not grant or deny a COA, and in these circumstances we consider a COA t o have been denied. See Gen. Order of Oct. 1, 1996.- 4 -

As to the first two issues, we deny COA for substantially the reasons stated in the magistrate judge’s Report and Recommendation . (See Magis. Rep. & Recommendation at 1–3, 7–14.) Although, the magist rate judge and the district court did not explicitly consider the third issue, we also deny COA as to that issue. Fancher’s argument that he has been denied a state-created liberty interest does not rise to the level of being a substantial s howing of the denial of a constitutional right because the argument has no me rit and that conclusion is not debatable among reasonable jurists. See Slack v. McDaniel , 529 U.S. 473, 484 (2000) (requiring appellants to show that reasonabl e jurists could debate whether the petition should have been resolved differently or that the issues presented deserved encouragement to proceed further before gr anting a COA). The Act created a system to ease overcrowding withi n Oklahoma’s prison system. When the prison system reached 95% of its capacity, a state of emergency could be declared requiring the Departmen t of Corrections to reduce the sentences of most inmates by 60 days. These se ntence reductions were called “CAP credits.” If this did not bring the prison po pulation to below 95% of capacity, additional CAP credits were applied. Fancher cites to the Supreme Court’s decision in Sandin v. Conner , 515 U.S. 472 (1995), in support of his claim that it wa s a violation of his due process2 Fancher also cites to Hewitt v. Helms , 459 U.S. 460 (1983) in support of

his claim. However, the Supreme Court has disappro ved of the methodology employed in that case. See Sandin , 515 U.S. at 482–84. - 5 - rights to eliminate the emergency release credit sy stem of the Act. 2 In Sandin , the Supreme Court said that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will be generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manneras to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the in mate in relation to the ordinary incidents of prison life. Id. at 484 (internal citations omitted). The repeal o f the Act does not inflict upon Fancher “atypical and significant hardship . . . in relation to the ordinary incidents of prison life.” Indeed, in the ordinary course of prison life in Oklahoma, the emergency release credits were rarely applied, and there was no reasonable expectation that Fancher would benefit from their application in the future. As the magistrate judge explained:

The recent history of the Act underscores the fact that any disadvantage to Petitioner caused by its repeal is speculative and highly attenuated. . . . [E]ntitlement has always b een contingent on the Governor’s decision to declare an emergency—as is amply demonstrated by the recent course of events. . . . . Here, the Governor has not only refused to declare an emergency that would trigger the Act’s provisions i n recent years, but has memorialized his reasons for doing so in th e executive orders referenced above. For example, the most recent exe cutive order finding no overcrowding emergency states:- 6 - The Department of Corrections has the ability to negotiate with and lease beds from private vendors if the need for prison beds exceeds current capacity. Whe n the Oklahoma Prison Overcrowding Emergency Act was passed in 1984, the Department did not have this authority.

. . . . In another of the executive orders, the Governor es tablished a special commutation docket to control prison population, in structing the Pardon and Parole Board to, on a monthly basis, con sider commuting the sentences of certain inmates who are to dischar ge their sentences in the next six months. These prison population co ntrol measures make it even less likely that the Act wold have bee n used, making any lengthening of Petitioner’s sentence speculativ e even if prison population is shown to be increasing. (Magis. Rep. & Recommendation at 10–11 (internal ci tations omitted).) Under these circumstances, Fancher did not have a l iberty interest in the potential application of early release credits unde r the Act. The application of the credits was not mandatory or certain, but contingen t on events outside of Fancher’s, or prison officials’, control. Therefor e, Fancher’s rights under the Due Process Clause of the Fourteenth Amendment were notviolated by the repeal of the Act. For the foregoing reasons, we DENY Fancher’s application for a certificate of appealability and DISMISS this appeal. The motion to proceed in forma pauperis is GRANTED

. ENTERED FOR THE COURT David M. Ebel Circuit Judge