* This order and judgment is not binding precedent, except under the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 19 1999

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ROBERT O. WOODS,

Petitioner-Appellant,

v.

KEN KLINGER,

Respondent-Appellee.

No. 98-6185

(D.C. No. 98-CV-80)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before BALDOCK , BARRETT , and HENRY , Circuit Judges.

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

unanimously that oral argument would not materially assist the determination of
1 We grant petitioner’s motion to proceed without prepayment of costs and

fees. See 28 U.S.C. § 1915. We also grant his motions to file a supplemental

reply brief and to strike the affidavits attached to respondent’s brief, which were

not submitted to the district court in the first instance. See, e.g. , Aero-Medical,

Inc. v. United States , 23 F.3d 328, 329 n. 2 (10th Cir. 1994).

2 This court previously granted petitioner a certificate of appealability as to

this one issue. See 28 U.S.C. § 2253(c).

-2-

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. 1

Petitioner appeals the district court’s denial of habeas relief, see 28 U.S.C.

§ 2254, on his claim alleging that Oklahoma’s Truth in Sentencing Act violated

the Ex Post Facto Clause by eliminating the Electronic Monitoring and

Specialized Supervision Programs, Okla. Stat. Ann. tit. 57, § 510.9 (amended

1997) and § 611 (repealed 1997). 2

 See, e.g. , Devine v. New Mexico Dep’t of

Corrections , 866 F.2d 339, 343 (10th Cir. 1989) (ex post facto clause precludes

retroactive increase in actual time inmate must spend in jail prior to supervised

release).

The Ex Post Facto Clause precludes application of a retrospective act

that inflicts “a greater punishment, than the law annexed to the crime, when

committed,” because such application implicates “the central concerns of the

Ex Post Facto Clause: the lack of fair notice and governmental restraint when
-3-

the legislature increases punishment beyond what was prescribed when the crime

was consummated.” Lynce v. Mathis , 519 U.S. 433, 441 (1997) (quotations

omitted). “To fall within the ex post facto prohibition, a law must be

retrospective . . . and it must disadvantage the offender affected by it by altering

the definition of criminal conduct or increasing the punishment for the crime.” 

Id. (further quotations omitted).

The Oklahoma legislature, however, enacted the Electronic Monitoring

and Specialized Supervision Programs in 1993, after petitioner had committed,

and been convicted of, the crimes at issue here. The legislature’s subsequent

elimination of these programs, in 1997, did not increase the punishment

prescribed at the time petitioner committed these criminal acts and, therefore,

did not offend the Ex Post Facto Clause. See Weaver v. Graham , 450 U.S. 24,

30-31 (1981); see also Lynce , 519 U.S. at 447-49 (recognizing “force” of

argument that retroactive changes in law enacted after conviction and sentence

would not violate Ex Post Facto Clause).
-4-

The judgment of the United States District Court for the Western District

of Oklahoma denying habeas relief is, therefore, AFFIRMED. 

Entered for the Court

Bobby R. Baldock

Circuit Judge