*This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicataand 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 

### AUG 13 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ DENNIS OLEN COGGIN, Petitioner-Appellant,
v. RON CHAMPION; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA, Respondents-Appellees. No. 99-6028 (W.D. Okla.) (D.Ct. No. 98-CV-1446-A)

____________________________ ORDER AND JUDGMENT *
Before BRORBY , EBEL , and LUCERO , 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.1 As to the timely filing of Mr. Cogin’s notice of appeal, the record shows the

district court rendered its judgment November 25, 1998, and Mr. Coggins delivered the notice of appeal to prison authorities for mailing December 21, 1998. Even though Mr. Coggin’s notice of appeal was not filed until January 13, 1999, under Rule 4(c) of the Federal Rules of Appellate Procedure, his notice of appeal is deemed filed at the time of his delivery to prison authorities. Thus, we find his notice of appeal timely filed within thirty days of the district court’s entry of judgment and exercise our jurisdiction.
-2- Appellant Dennis Olen Coggin, an Oklahoma state inm ate appearing pro se , appeals the district court’s decision dismissing hi s habeas corpus petition filed pursuant to 28 U.S.C. § 2254. We deny his request for a certificate of appealability and dismiss his appeal. 1
A jury convicted Mr. Coggin of first degree felony murder, and the state trial court sentenced him to a minimum sentence of life in prison with the possibility of parole. On direct appeal, the Oklah oma Court of Criminal Appeals affirmed his conviction and sentence.
Mr. Coggin filed his federal habeas corpus petition claiming his sentence must be retroactively modified based on the newly e nacted Oklahoma Truth in Sentencing Act, effective July 1, 1999, which estab lishes a new minimum sentence of eighteen- to sixty-years in prison for first-degree felony murder. In the event the new Act is not applied retroactively, he claimed violation of his-3-

equal protection rights for treatment different tha n those prisoners who received shorter sentences when sentenced under the new Act. In addition, Mr. Coggin suggested that because he has been classified underthe new Act for the purposes of parole, he should be similarly classified under the Act for the purpose of his sentence.
The federal district court assigned the matter to amagistrate judge who recommended dismissing the petition. In first addr essing Mr. Coggin’s failure to exhaust his state remedies by not seeking post-conv iction relief, the magistrate judge determined: (1) the circumstances warranted consideration of his petition on its merits, and (2) the Oklahoma Court of Crimin al Appeals’ prior decisions, adverse to Mr. Coggin, made any post-conviction fil ings futile.
Proceeding to the merits of the petition, the magis trate judge determined Mr. Coggin’s claims relating to his sentence did no t raise a federal constitutional question because his sentence was not outside the r ange of punishment allowable by state law at the time of his sentence. Similarl y, the magistrate judge found the question of retroactive application of the new Act, effective July 1, 1999, a matter of state law, and noted the Oklahoma Court of Crimi nal Appeals previously determined the Act has no retroactive application. Finally, the magistrate judge-4-

rejected Mr. Coggin’s equal protection argument bas ed on his finding that Mr. Coggin was not similarly situated to those individu als committing the same crime after the effective date of the Act.
The district court adopted the magistrate judge’s r ecommendations and, based on analogous rulings by this court, rejected Mr. Coggin’s argument that the Act must be applied retroactively in order to chang e his life sentence to a determinate sentence. As to Mr. Coggin’s conclusory argument that he should be sentenced under the Act because he has been classif ied under the Act for purposes of parole, the district court determined Mr. Coggin received the sentence and parole eligibility standards in existence at the ti me of his crime, and had not shown: (1) his parole period or sentence had incre ased, as required for a showing of an ex post facto violation; or (2) criminals convicted and sentence d to life imprisonment on the same date as Mr. Coggin receive d a determinative sentence under the Act for parole eligibility purposes, as r equired for an equal protection claim. Based on these rulings, the district court denied Mr. Coggin’s petition and request for a certificate of appealability.
On appeal, Mr. Coggin raises the same arguments rai sed in his petition and addressed by the district court. We review the dis trict court’s factual findings for-5-

clear error and its legal basis for dismissal of Mr . Coggin’s petition de novo
. See Jackson v. Shanks , 143 F.3d 1313, 1317 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998). We presume the state court’s factual findin gs are correct and afford deference to the state court’s construction of stat e law. Id. In order for Mr. Coggin to proceed on appeal, he must make a substan tial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). A fter a careful review of the record, we agree with the district court that Mr. C oggin fails to make the requisite showing, and note the district court’s disposition of this case is consistent with our dismissal of similar habeas cases and the Oklah oma Court of Criminal Appeals’ disposition of similar issues concerning the Act. See Castillo v. State , 954 P.2d 145 (Okla. Crim. App. 1998); Nestell v. State , 954 P.2d 143 (Okla. Crim. App. 1998). For these reasons, we adopt the reasoning set forth in the district court’s Order of November 25, 1998 and the magistrate judge’s Report and Recommendation of October 28, 1998, and attach them hereto.
Accordingly, we deny Mr. Coggin’s request for a certificate of appealability and DISMISS the appeal.
Entered by the Court: WADE BRORBY United States Circuit JudgeAttachments not available electronically.