* This order and judgment is not binding precedent, except under the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

### MAR 23 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARVIN SEEGARS,

Plaintiff-Appellant, No. 04-6335
v. (W.D. Oklahoma) RON J. WARD,

Defendant-Appellee. (D.C. No. 03-CV-1694-H)

ORDER AND JUDGMENT *

Before EBEL , McKAY , and HENRY , Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See F ED . R. A PP . P. 34(a)(2); 10 TH C IR . R. 34.1(G). The case is therefore ordered submitted without oral argument.-2- I. BACKGROUND Mr. Seegars is an Oklahoma state prisoner proceedin g pro se. In 1980, Mr. Seegars was convicted of first degree murder and as sault and battery with a deadly weapon with intent to kill, and is serving a life sentence and a twenty-year sentence respectively for each conviction. The Oklahoma Pardon and Parole Board did not recomm end parole for Mr. Seegars in 1996, 1997, or 1998. The Pardon and Par ole Board informed Mr. Seegars that, pursuant to the amended state statute and according to Oklahoma Pardon and Parole Board policy, he would not be rec onsidered for parole until three years passed. The Pardon and Parole Board di d not recommend parole in 2001 and set the next parole hearing for July 2004. In a previous action, Mr. Seegars filed a complain t pursuant to 42 U.S.C. § 1983 seeking declaratory and prospective injunctive relief. In his previous complaint, Mr. Seegars alleged that title 57, secti on 332.7(F) of the Oklahoma Statutes violated the Ex Post Facto Clause of the U nited States Constitution. See O KLA
. S TAT . 57, § 332.7(F) (Supp. 1999). The magistrate judg e recommended dismissal without prejudice based on Mr. Seegars’ f ailure to exhaust his administrative remedies with the Oklahoma Departmen t of Corrections. The district court adopted that recommendation, and we affirmed the judgment of the-3-

district court in an unpublished order and judgment

. See Seegars v. Ward , No. 03-6032, 2003 WL 21197126 (10th Cir. May 22, 2003). In the present action, Mr. Seegars again challenges subsection § 332.7(F) (Supp. 1999) on the same grounds, contends he has e xhausted his administrative remedies, and seeks the same relief. The district c ourt dismissed his complaint and denied Mr. Seegars’ motion to amend his complai nt. For the reasons stated below, we AFFIRM the district court’s dismissal of Mr. Seegars’ complaint.

II. DISCUSSION The amended statute was passed as part of the Truth in Sentencing Act, which originally included matrices of sentencing ra nges for various crimes. Although the Oklahoma legislature soon repealed the sentencing matrices, the matrices are still used in calculating parole eligi bility dates. See O KLA
. S TAT . tit. 57, § 332.7(A)(3) (Supp. 2004). As originally enacted, subsection A of the statute set forth formulas for calculating the dates of parole eligibility for inm ates like Mr. Seegars who were serving sentences for crimes committed before July 1, 1998. Subsection (B)(2) directed the Department of Corrections and the Pard on and Parole Board to promulgate rules for the implementation of subsecti on A. Specifically, the rules are to include “procedures for reconsideration of p ersons denied parole under this1 The rules shall include, but not be limited to, p rocedures for

reconsideration of persons denied parole under this section and procedure[s] for determining what sentence a person eligible for par ole consideration pursuant to subsection A of this section would have received under the applicable matrix. O KLA
. S TAT
. tit. 57, § 332.7(F) (Supp. 1999) (emphasis added). -4- section and procedure[s] for determining what sentence the person would have received under the applicable matrix .” O KLA
. S TAT . tit. 57, § 332.7(B)(2) (Supp. 1997) (emphasis added). The statute was amended again in 1999, and the lang uage at issue directing the Department of Corrections and the Pardon and Pa role Board to promulgate rules in subsection (B)(2) became subsection (F). 1 Mr. Seegars’ claim is this: under subsection (B)(2) he had a right to have his life sentence modified to a determinable number of years. The Department never promulgated the required rules under the 1997 law and as such, argues Mr. Seegars, unlawfully subjected him to a harsher resu lt. The magistrate judge determined that Mr. Seegars’ c laim “is based on his misinterpretation of Oklahoma law.” Rec. doc. 19, at 5 (Magistrate Judge’s Report and Recommendation, filed July 23, 2004). T he magistrate judge recommended dismissal for failure to state a claim upon which relief could be granted. The district court adopted the magistrate judge’s report and recommendation and dismissed Mr. Seegars’ complaint with prejudice.-5- The United States Constitution prohibits the States from passing any "ex post facto Law." U.S. C ONST
. ART . I, § 10, ¶ 1. This Clause is aimed at laws that retroactively alter the definiti on of crimes or increase the punishment for criminal acts. Two critical ele ments must be present for a law to fall within the ex post facto prohibition: firs t, the law must be retrospective, that is, it must apply to events occurring before its enactment; and second, it must disadvantage the off ender affected by it. Henderson v. Scott, 260 F.3d 1213, 1215 (10th Cir. 2001) (other inter nal quotation marks and citations omitted). In Henderson , we determined that § 332.7(D)(1), which extended from one year to three years the period of time that may ela pse for parole eligibility determinations did not violate the Ex Post Facto Cl ause. We concluded that “[w]hen viewed within the whole context of Oklahoma ’s parole regulations, the statute at issue in this case does not facially inc rease the likelihood of punishment.” Id. at 1216. The same is true in this action. “The statute chan ged the formula for calculating the date of an inmate’s eligibility for parole consideration.” Rec. doc. 19, at 5 (Magistrate Judge’s Report and Recommendat ion, filed July 23, 2004). Although the statute’s language is a bit confusing, title 57, sections 332.7(B(2) and 332.7(F) of the Oklahoma Statutes focus exclusi vely on the calculation of parole eligibility dates and thus could not have al tered the definition of criminal conduct nor increased punishment for a crime. See O KLA
. S TAT . tit. 57, § 332.7(B)(2) (Supp. 1997); id. § 332.7(F) (Supp. 1999). Absent such a showing,-6-

“the statute does not violate the Ex Post Facto Cla use, and [Mr. Seegars’] claim must fail.” Henderson , 260 F.3d at 1217. III. CONCLUSION Accordingly, we AFFIRM the district court’s dismi ssal for failure to state a claim upon which relief can be granted. We DENY Mr. Seegars’ motion for appointment of counsel and we AFFIRM the district c ourt’s denial of Mr. Seegars’ belated motion to amend his complaint. Entered for the Court, Robert H. Henry Circuit Judge