* This order and judgment is not binding precedent, e xcept under the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

### 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, th is panel has determined unanimously to honor the parties’ request for a dec ision 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 th e Oklahoma Department of Corrections calculated his earned time credits viol ated the Equal Protection and Ex Post Facto Clauses of the Constitution. The dis trict court adopted the report and recommendation of the magistrate judge that rel ief be denied, and also denied Mr. Foster’s motion for a certificate of probable c ause. On appeal, we construed Mr. Foster’s notice of appeal as a request for a ce rtificate of probable cause. The district court order denying relief, its order denying a certificate of probable cause, and Mr. Foster’s notice of appeal w ere all filed before April 24, 1996, the date on which President Clinton signed in to law the Antiterrorist and Effective Death Penalty Act, Pub.L. No. 104-132, 11 0 Stat. 1214 (1996). Section 102 of the new Act “requires a state prisoner appea ling a denial of a § 2254 petition to obtain a certificate of appealability i nstead 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 Lennoxwe held that “[b]ecause the standard governing the issuance of a certificate of appealab ility requires the same showing as that for obtaining a certificate of probable cau se, application of § 102 of the Act to Petitioner’s request for a certificate of pr obable cause would not constitute retroactive operation of a statute.” Id. at 434. Accordingly, we must determine whether Mr. Foster has made a substantial showing o f the denial of a1 Mr. Foster has filed with this court a request fora 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 ta mpered 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 fir st 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 calcul ation of his earned time credits violated his constitutional rights in sever al regards. The nub of his claims is that he is entitled to have his credits calculat ed 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 lightof Mr. Foster’s arguments and authorities. We conclude that Mr. Foster has faile d to make a substantial showing of the denial of a constitutional right for the rea sons 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 forthw ith. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge