Petitioner’s caption only identifies Warden Franklin. Petitioner’s brief *

offers no further identification of unnamed parties.

 This order is not binding precedent, except under the doctrines of law of **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; nevertheless, an order may be cited under the terms and

conditions of 10th Cir. R. 36.3.

 After examining the briefs and the appellate record, this three-judge ***

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

F I LED

United States Court of Appeals

Tenth Circuit

June 30, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SIDNEY A. WORTHEN,

Petitioner-Appellant, No. 06-6058

v. (W.D. of Okla.)

ERIC FRANKLIN, Warden, and

OKLAHOMA DEPARTMENT OF

CORRECTIONS, ITS EMPLOYEES

AND STAFF, ET AL.*

Respondent-Appellee.

(D.C. No. CV-05-1090-C)

ORDER DENYING CERTIFICATE OF APPEALABILITY**

Before HARTZ, EBEL, and TYMKOVICH, Circuit Judges. 

***

Sidney Allen Worthen, an Oklahoma state prisoner, requests a Certificate

of Appealability (COA) to appeal the district court’s dismissal of his habeas

petition under 28 U.S.C. § 2241. Since Worthen appears pro se, we construe his
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pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). The

district court held that a COA should not issue because Worthen failed to make a

substantial showing of the denial of a constitutional right. We agree, and

accordingly, DENY the request for a COA and DISMISS the appeal.

I. Background

In 1982, Worthen was convicted of murder and sentenced to life

imprisonment. Two years later he pleaded guilty to aiding and abetting a prison

escape. For reasons unclear in the record, Worthen was at the same time

classified as either a level 3 or level 4 inmate, making him eligible to earn credits

which would allow him to obtain certain prison benefits.

In April 2005, again for reasons not entirely explained by the record,

Oklahoma prison officials classified Worthen at level 4. Level 4 inmates are

eligible for earned credits that can work to shorten the length of their sentences,

as well as other prison benefits, such as a higher pay grade and spending

privileges at the prison canteen. Two months later, however, prison authorities

reexamined Worthen’s classification level. Because the 1984 escape conviction is

misconduct under Department of Corrections (DOC) policy OP-060107, they

concluded he was ineligible for level 4 and had been misclassified. Accordingly,

Worthen was demoted to level 2, where, under DOC’s current policy, he will

remain for the duration of his sentence. At level 2, Worthen cannot earn as many

good time credits, nor is he eligible for a number of prison benefits. 
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Worthen filed a habeas petition in district court claiming the DOC policy as

applied to his 1984 conviction was unlawful as (1) an ex post facto violation, 

(2) a deprivation of due process, and (3) a denial of equal protection. He also

sought a declaratory judgment, arguing that application of the DOC policy OP060107 violated the ex post facto clause. Upon the magistrate judge’s

recommendation, the district court concluded that the application of the DOC

policy did not violate Worthen’s rights and denied his request for a declaratory

judgment. 

II. Analysis

A circuit court may issue a COA “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. 

§ 2253(c)(2). Where a district court “has rejected the constitutional claims on the

merits,” an applicant meets this standard by “demonstrat[ing] that reasonable

jurists would find the district court's assessment of the constitutional claims

debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting

Slack v. McDaniel, 529 U.S. 473, 484 (2000)). In conducting our analysis, we

need only engage in “an overview of the claims in the . . . petition and a general

assessment of their merits” rather than “full consideration of the factual or legal

bases adduced in support of the claims.” Id. at 336. 
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A. Ex Post Facto Claim

Worthen’s first argument is that the level 2 classification based on the 1984

escape conviction violates the Ex Post Facto Clause of the Constitution. To

violate the Ex Post Facto Clause, a law must be retrospective, and must “alte[r]

the definition of criminal conduct or increas[e] the punishment for [a] crime”

after it has been committed. Lynce v. Mathis, 519 U.S. 433, 441 (1997). The

application of DOC policy did not increase Worthen’s punishment for assisting

the escape beyond that imposed in 1984. In 1984, Oklahoma law provided credits

only for school or work, and Worthen does not claim that DOC failed to provide

credits under the earlier system. In fact, Worthen did not lose any credits that he

had under the 1984 system since his misconduct occurred before the four-level

credit system was adopted in 1988. See Smith v. Scott, 223 F.3d 1191, 1193 (10th

Cir. 2000). As to the imposition of a new classification system in 1988, Worthen

cannot show that it increased his punishment beyond that in place at the time of

his conviction.

Moreover, even if the new classification system somehow imposed

retrospective punishment, habeas relief is still unavailable to Worthen. Pursuant

to Oklahoma law, Worthen is not eligible to have any time deducted from his

sentence on the basis of his credit level because he is serving a life sentence. 

Okla. Stat. Ann tit. 57 § 138(a) (1915). A writ of habeas corpus can only be

granted if Worthen has the possibility of expedited release. See McIntosh v. U.S.
 Worthen also asks that we rely on Wilkinson v. Dotson, 544 U.S. 74 1

(2005), in which the Supreme Court held that prisoners may challenge the

constitutionality of state parole procedures under 42 U.S.C. § 1983. 544 U.S. at

76. This case does not affect our analysis of Worthen’s claims because he has not

filed a § 1983 claim. 

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Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997). The Supreme Court has

held that “constitutional claims that merely challenge the conditions of a

prisoner’s confinement . . . fall outside [the] core [of federal habeas corpus] and

may be brought pursuant to § 1983” instead. Nelson v. Campbell, 541 U.S. 637,

643 (2004). Therefore, habeas relief is unavailable to Worthen solely on the basis

of his prison classification.1

B. Due Process Claim

Worthen’s due process argument is similarly flawed. Worthen has no

cognizable liberty interest in avoiding application of DOC’s classification policy. 

He has no hope of being released from prison any earlier on the basis of credits he

earns or is eligible to earn under the policy. Okla. Stat. Ann. tit. 57 § 138(a)

(1915); see Stephens v. Thomas, 19 F.3d 498 (10th Cir. 1994) (holding that New

Mexico inmate serving life sentence has no liberty interest in good time credits

earned during first ten years of imprisonment where state law forbids the

application of such credits to reduce the sentence of a prisoner serving a life

sentence). While he may have a liberty interest in the right to earn additional
 Worthen had a liberty interest in credits already earned. See Waldon v. 2

Evans, 861 P.2d 311, 313 (Okla. Crim. App. 1993). The DOC did not take away

credits Worthen was erroneously allowed to earn prior to the application of DOC

policy. 

 Worthen suggests that Wilson v. Jones, 430 F.3d 1113 (10th Cir. 2005) 3

and Branham v. Workman, 2006 WL 950656 (10th Cir. Apr. 13, 2006)

(unpublished), point to a different outcome. We disagree. In Wilson, we held a

misconduct violation that reduced a prisoner’s credit level in a way which

inevitably affected the duration of his sentence deprived the inmate of a liberty

interest and therefore violated the due process clause. Wilson provides Worthen

no succor because, as noted above, Worthen’s misconduct violation cannot affect

the duration of his life sentence. Branham is also unhelpful to Worthen. In that

unpublished case, we held that an inmate could not prevail on a due process claim

for good time credits when the inmate was never entitled to receive the credits in

the first place. The same could be said of Worthen’s right to earn future

credits—he was not entitled to earn the credits he has and certainly is not entitled

to earn any more under DOC policy. 

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credits for privileges while incarcerated, he must vindicate this interest though a 2

§ 1983 claim. Nelson, 541 U.S. at 643. 

3

C. Equal Protection Claim

It is not disputable that Worthen’s equal protection claim also lacks merit. 

The Equal Protection Clause “requires the government to treat similarly situated

people alike.” Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998) (citing

City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)). Worthen

alleges that two other inmates were involved in the 1984 misconduct, and that

they have not been penalized with the same demotion in credit level as Worthen. 

We have addressed similar arguments in the past, and concluded that the DOC has

discretion to classify inmates differently even because of minor differences in
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their histories or because some inmates present a higher risk of future misconduct

than others. Templeman v. Gunter, 16 F.3d 367, 368–71 (10th Cir. 1994). 

Worthen has pointed to nothing that shows the disparate treatment lacks a rational

basis or is otherwise based on suspect characteristics. In sum, we agree with the

district court that the alleged similarities between Worthen’s misconduct and that

of other inmates is not sufficient to allege an equal protection violation. See id. 

III. Conclusion

For these reasons, we DENY Worthen’s application for a COA and

DISMISS this appeal.

Entered for the Court

Timothy M. Tymkovich

Circuit Judge