* This order and judgment is not binding precedent, e xcept under the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 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 We grant petitioner’s motion to proceed without pre payment 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 t o 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 certific ate 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). T he 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 Truthin Sentencing Act violated the Ex Post Facto Clause by eliminating the Electro nic Monitoring and Specialized Supervision Programs, Okla. Stat. Ann. tit. 57, § 510.9 (amended 1997) and § 611 (repealed 1997). 2See, e.g. , Devine v. New Mexico Dep’t of Corrections , 866 F.2d 339, 343 (10th Cir. 1989) (ex post facto clause precludes retroactive increase in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 spe nd in jail prior to supervised release). The Ex Post Facto Clause precludes application of aretrospective 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 wa s 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 of fender affected by it by altering the definition of criminal conduct or increasing th e punishment for the crime.” Id. (further quotations omitted). The Oklahoma legislature, however, enacted the Elec tronic Monitoring and Specialized Supervision Programs in 1993, afterpetitioner had committed, and been convicted of, the crimes at issue here. T he legislature’s subsequent elimination of these programs, in 1997, did not inc rease the punishment prescribed at the time petitioner committed these c riminal 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 af ter conviction and sentence would not violate Ex Post Facto Clause).-4-

The judgment of the United States District Court fo r the Western District of Oklahoma denying habeas relief is, therefore, AF FIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge