*This order and judgment is not binding precedent except under the doctrines of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

### FEB 3 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________ JOHN GENE MOORE, Petitioner-Appellant,
v. KEN KLINGER, Respondent-Appellee. No. 98-6266 (W.D. Okla.) (D.Ct. No. 97-CV-2028)

____________________________ 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 materially assist 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.
Appellant John Gene Moore, an Oklahoma state prison er appearing pro se,1 The first post-conviction appeal did not involve any of the issues addressed in

this appeal, and has no bearing on the outcome of this appeal.
-2- seeks a certificate of appealability to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas petition. We grant Mr. Moore’ s request to proceed in forma pauperis, deny his request for a certificate of appealability, and dismiss his appeal.
Mr. Moore pled guilty to four counts involving fals e imprisonment, concealing stolen property, and cultivation of mari juana. He received a sentence of twelve years imprisonment on one charge and ten years imprisonment on three other charges, to run concurrently. Mr. Moore did not file a direct appeal, but subsequently filed two applications for post-convic tion relief in state court. 1 In his most recent application, he sought modification of his sentence, claiming violation of his Equal Protection rights under the Fourteenth Amendment based on passage of the Oklahoma Truth in Sentencing Act. See 1997 Okla. Sess. Laws, Ch. 133, §§ 612 and 613. The state district court and Oklahoma Court of Criminal Appeals denied him post-conviction relief.
Mr. Moore then filed a petition for a writ of habea s corpus under § 2254 in the federal district court. The thrust of his peti tion was his demand that his-3-

sentence be reduced through retroactive application of the Oklahoma Truth in Sentencing Act, passed in April 1997 and effective July 1, 1998. In addition, Mr. Moore claimed the Act must be construed favorably t oward him because of its ambiguity and the liberty interest and due process rights it creates. While Mr. Moore demanded he receive the benefits bestowed by the Act, he also complained (1) the Act constituted an unconstitutional ex post facto law as it made him ineligibile for various early release programs, inc luding pre-parole, house arrest, electronic monitoring and specialized supervision; (2) he did not make his guilty plea knowingly, intelligently or voluntarily becaus e he detrimentally relied on the existence of those early release programs; and (3) the Act violates his equal protection rights because he is treated differently from those prisoners who receive shorter sentences under the Act.
A magistrate judge recommended Mr. Moore’s petitionbe dismissed for failure to exhaust available state remedies or, in the alternative, be denied on the merits. In addressing the merits of the petition, the magistrate judge concluded Mr. Moore could not qualify for a sentence reductio n because the Oklahoma Truth in Sentencing Act does not apply to prisoners who c ommitted crimes before July2The magistrate judge relies on Cotner v. Hargett, 133 F.3d 932, 1998 WL 4334

(10th Cir. 1998) (unpublished), in which we concluded the Truth in Sentencing Act does not apply to those sentenced prior to the Act’s effective date of July 1, 1998.
-4- 1, 1998; 2 and because his claim centers on questions of stat e law while habeas relief requires implication of a federal constituti onal question. In addition, the magistrate judge determined the Act did not create an unconstitutional ex post facto law because the Act did not affect the programs atissue, or alternatively, Mr. Moore’s anticipated participation in such progr ams, under pre-Act statutes, was speculative. For the same reasons, the magistr ate judge rejected Mr. Moore’s claim his guilty plea was involuntary and unknowing . Lastly, the magistrate judge concluded (1) no due process violation occurr ed as the Act did not create a liberty interest requiring reduction of his sentenc e, and (2) no equal protection violation occurred because Mr. Moore’s treatment is similar to those sentenced at the same time as him.
After an independent review of the record, the rele vant law, and Mr. Moore’s objection thereto, the district court adopt ed the magistrate judge’s recommendation, exercised its discretion to decide the petition on the merits, and denied the petition. The district court also denie d Mr. Moore’s request for a certificate of appealability and his request to pro ceed in forma pauperis
.3 Mr. Moore’s forty-eight-page appeal brief exceeds the thirty-page requirement

under 10th Cir. R. 32(7)(A).
-5- On appeal, Mr. Moore, in a very lengthy brief, 3 raises essentially the same arguments presented to and addressed by the distric t court. Before addressing the merits of Mr. Moore’s petition and his request for a certificate of appealability, we must consider the issue of whether we should dis miss his petition on grounds he failed to exhaust available state remedies. See Hoxsie v. Kerby , 108 F.3d 1239, 1242 (10th Cir.), cert denied, 118 S. Ct. 126 (1997). Generally, a federal court presented with a habeas petition containing b oth exhausted and unexhausted claims should dismiss the entire petition without p rejudice. Hoxsie , 108 F.3d at 1242. An exception to this rule applies when the court d etermines, as we do here, that the “‘interests of comity and federalism will be better served by addressing the merits forthwith.’” Id. (quoting Granberry v. Greer , 481 U.S. 129, 134 (1987) and applying it to 28 U.S.C. § 2554(b)(2)). Thus, we proceed to Mr. Moore’s request for a certificate of appealability.
In order to proceed on appeal, Mr. Moore must make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). See also United States v. Simmonds , 111 F.3d 737, 746 (10th Cir. 1997). We have thor oughly reviewed Mr. Moore’s application for a certificate of appealability, his brief, the4We agree with the magistrate judge and district court in finding Mr. Moore’s ex

post factoargument fails to make a substantial showing of the denial of a constitutional right. In this case, the district court and magistrate judge resolved this issue on the merits and found Mr. Moore failed to show his entitlement to, or projected participation in, these programs under pre-Act statutes. -6- magistrate judge’s recommendation, the district cou rt’s order, and the record on appeal, and we agree with the district court that M r. Moore fails to make the required showing. Our decision is in accord with o ur dismissal of similar habeas
cases. 4 Accordingly, we adopt the reasoning set forth in the district court’s Order filed June 19, 1998, and the magistrate judge’s Fin dings and Recommendation, filed May 29, 1998, and attach them hereto.
We grant Mr. Moore’s request to proceed in forma pa uperis, deny his request for a certificate of appealability, and DISMISS the appeal.

Entered by the Court: WADE BRORBY United States Circuit JudgeAttachments not available electronically.