* This order and judgment is not binding precedent, e xcept under the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 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
STEVEN R. MUELLER,

Petitioner-Appellant,

v. LOUIS E. BRUCE; ATTORNEY GENERAL OF KANSAS, Carla J. Stovall, Respondents-Appellees. No. 97-3184 (D.C. No. 96-CV-3078-DES)

(D. Kan.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , 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.-2-

Steven R. Mueller, proceeding pro se, appeals from the district court’s order denying his petition for habeas corpus relief , filed pursuant to 28 U.S.C. § 2254. The basis for his petition are his assertion s that certain provisions of the Kansas Sentencing Guidelines Act (KSGA), Kan. Stat. Ann. §§ 75-5217(b), 21- 4724(b)(2), and 22-3717(f), violate his constitutio nal right to equal protection of the laws of the United States. At the time Muellertook his appeal, decisions of this court had applied the certificate of appealabi lity requirements of the Antiterrorism and Effective Death Penalty Act of 19 96 (AEDPA) to cases filed prior to AEDPA’s effective date, see, e.g. , Lennox v. Evans , 87 F.3d 431, 432-34 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997). Accordingly, the district court considered Mueller’s case and denied a certif icate of appealability. Mueller then filed motions in this court for the issuance o f a certificate. Further, respondent notified this court that he would not fi le a response brief. Since that time, in light of the Supreme Court’s opinion in Li ndh v. Murphy , 117 S. Ct. 2059 (1997), we have held that habeas petitioners who fi led their applications with the district court prior to AEDPA’s effective date neednot obtain a certificate of appealability to proceed in this court. See United States v. Kunzman , 125 F.3d 1363, 1364 n. 2 (10th Cir. 1997). Therefore, we ne ed not address Mueller’s motions for a certificate of appealability. We gra nt a certificate of probable cause under pre-AEDPA authority, and proceed to review hi s appeal on the merits.-3-

Mueller is currently serving several concurrent sentences in Kansas, including a ten-year to life sentence for aggravate d robbery. He was released on parole in 1994 and arrested in 1995 for violation o f parole; his parole was revoked later that year. Because his infraction wa s only a “technical” violation of parole, he was not eligible to have his sentences c onverted under the limited retroactivity provisions of the Kansas Sentencing G uidelines Act, enacted in 1993. Mueller contends that the Act’s language, cr eating different classes of inmates and providing that the limited retroactivity provisions apply only to some- -and specifically not to him--results in an equal p rotection violation. Upon careful review of the entire record on appeal and applicable case law, we agree with the district court that Mueller’s contentions are without merit. Both the Kansas courts and the district court have addressed similar arguments and rejected them. See Chiles v. State , 869 P.2d 707 (Kan. 1994); Jones v. Bruce , 921 F. Supp. 708 (D. Kan. 1996). Mueller’s content ions that these cases are distinguishable because of his factual circumstance s are likewise without merit. See McGann v. McKune , 911 P.2d 811 (Kan. App. 1995) (addressing equal protection arguments based on failure to convert se ntences under KSGA due to “technical” violation of parole). The judgment of the United States-4-

District Court for the District of Kansas is AFFIRM ED. All outstanding motions are denied as moot. The mandate shall issue forthw ith.

Entered for the Court

Robert H. Henry Circuit Judge