* This order and judgment is not binding precedent, e xcept under the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

### JUN 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

D.K. FALASHA MANSA MUSA AMEN-RA; TERRY W. EVANS; LOUIS B. NILES; JAMIE F. GRAHAM; RICKY D. WELKER; DARIN BUTLER; EARNEST J. SEXTON; CHARLES D. HICKS, JR., and RICHARD L. PLUMMER,

Plaintiffs-Appellants,

v. UNITED STATES DEPARTMENT OF DEFENSE,

Defendant-Appellee. No. 97-3156 (D.C. No. 94-CV-3108) (D. Kan.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.1 Three of the plaintiffs to this action, Louis Niles , Earnest Sexton, and

Jamie Graham, were paroled after the action was fil ed. Those plaintiffs have withdrawn from this appeal. -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Plaintiffs filed an amended complaint seeking equit able relief for violation of constitutional rights. Of the several violation s alleged in the amended complaint, on appeal plaintiffs pursue only their a llegation that applying Department of Defense Directive 1325.4, governing p arole eligibility, to them violates the ex post facto clause of the United States Constitution. The dis trict court granted summary judgment in favor of defendants. We review the grant of summary judgment de novo, see Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996), and we affirm. 1 Plaintiffs argue on appeal that the district court’s decision in Jefferson v. Hart , No. 91-3232-RDR, 1993 WL 302137, at *4 (D. Kan. July 29, 1993), aff’d 84 F.3d 1314 (10th Cir.), cert. denied , 117 S. Ct. 258 (1996), controls this case. They argue that case establishes the unconstitution ality of the directive in their situations and that, based on that case, they are entitled to relief. Jefferson involved a petition for writ of habeas corpus filedunder 28 U.S.C. § 2241. The-3-

petitioner in that case was Dwayne Keith Jefferson, who is now known as Falasha Mahsa Musa Amen-Ra, one of the plaintiffs in this a ction. As a preliminary matter, we hold that the issue raised in this appea l, which is the same issue that was decided in Jefferson , is res judicata as to Mr. Amen-Ra. See Nwosun v. General Mills Restaurants, Inc. 124 F.3d 1255, 1257 (10th Cir. 1997) (setting forth elements of res judicata ), cert. denied , 118 S. Ct. 1396 (1998). As to the remaining plaintiffs, we hold that Jefferson does not entitle them to relief in this case. Jefferson was a habeas corpus action limited to the particular facts of that case. If plaintiffs wish to challenge the constitutionality of their confinement, their remedy lies in habeas corp us. The district court’s grant of summary judgment in favor of defendant is AFFIRMED. The motion to file a surreply is granted.

Entered for the Court
Michael R. Murphy Circuit Judge