* This order and judgment is not binding precedent, e xcept under the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

### JUL 8 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
DAVID L. LARSON,

Petitioner-Appellant,

v. HANK GALETKA, Warden, Utah State Prison, Respondent-Appellee. No. 97-4160 (D.C. No. 94-CV-1142) (D. Utah)

ORDER AND JUDGMENT *

Before KELLY , BARRETT , and HENRY , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Because petitioner filed his petition before the en actment of the

Antiterrorism and Effective Death Penalty Act, the Act’s certificate of appealability provisions do not apply. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997), cert. denied , 118 S. Ct. 1375 (1998). We grant petitioner a certificate of probable cause. -2- Petitioner David L. Larson challenges the constitut ionality of the state statute under which he was denied probation for his convictions for sodomy on a child and sexual abuse of a child. In his petitionfor habeas corpus relief under 28 U.S.C. § 2254, he claims that Utah Code Ann. § 7 6-5-406.5(1) is unconstitutionally vague and violates his rights to due process, to equal protection of the laws, and to be free from cruel and unusual punishment. The district court denied habeas relief. We exercise jurisdiction und er 28 U.S.C. § 1291, 1 and affirm. On July 28, 1986, petitioner pled guilty to one count of sodomy on his fiveyear-old stepdaughter in violation of Utah Code Ann . § 76-5-403.1(1) and one count of sexual abuse of his four-year-old stepdaug hter in violation of Utah Code Ann. § 76-5-404.1(1). He had been married to the g irls’ mother for about five months. He committed the offenses sequentially andin the presence of both girls on a day when their mother was away from the home. The trial court sentenced him to concurrent terms of a mandatory minimum five years’ imprisonment to-3-

life, and one to fifteen years’ imprisonment. The trial court did not sentence petitioner to probation because § 76-5-406.5(1) andsubsections (1)(d) and (1)(f) did not provide probation as an alternative for a d efendant who had lived with his stepchildren for less than a year, or who had commi tted an offense against more than one victim at the same time or during the same course of conduct, or who had knowingly committed the offense in front of a p erson other than the victim. See State v. Larson , 758 P.2d 901, 902-03 (Utah 1988) (discussing fact s of case and quoting then-current version of § 76-5-406.5(1) ). Petitioner believes he should have been sentenced to probation. Petitioner’s claims are without merit. The five-ye ar minimum mandatory sentence for sodomy on a child does not constitute cruel and unusual punishment. See State v. Bishop , 717 P.2d 261, 268-72 (Utah 1986). Nor does § 76- 5-406.5(1) violate the equal protection clause. See id. at 265-67; State v. Egbert , 748 P.2d 558, 559 (Utah 1987). Finally, § 76-5-406.5(1) is not unconstitutionally vague. SeeEgbert , 748 P.2d at 559-60.-4-

Petitioner is granted a certificate of probable cau se. The judgment of the United States District Court for the District of Ut ah is AFFIRMED.

Entered for the Court
Robert H. Henry Circuit Judge