F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 6 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
CLARENCE DAVIS,
Petitioner - Appellant,
v.
STEPHEN W. KAISER, Warden,
No. 00-6080
Respondent - Appellee, (D.C. No. 99-CV-1680-R)
(Western District of Oklahoma)
and
DREW EDMONDSON, Attorney
General of the State of Oklahoma,
Respondent.
ORDER AND JUDGMENT *
Before BALDOCK, HENRY and LUCERO, Circuit Judges.
*
The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,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 and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
Petitioner Clarence Davis, a state prisoner appearing pro se, seeks a
certificate of appealability to appeal the district court’s dismissal of his 28 U.S.C.
§ 2254 habeas petition.
Because Davis challenges not the validity of his conviction and sentence
but rather the implementation of the Oklahoma Truth in Sentencing Act, 1997
Okla. Sess. Laws ch. 133 (“the Act”), we analyze his claim as if it had been filed
under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254. See Montez v. McKinna,
208 F.3d 862, 863 (10th Cir. 2000). A state prisoner bringing § 2241 claims must
be granted a certificate of appealability (“COA”) prior to being heard on the
merits of the appeal. See id. at 869.
On April 29, 1989, Davis pleaded guilty to obtaining money by false
pretenses after former conviction of two felonies and was sentenced to thirty
years’ imprisonment. Davis filed an application for post-conviction relief in state
court challenging the implementation of the Act, which was denied. His appeal of
this denial of post-conviction relief was likewise denied.
In his habeas petition, Davis presents three claims: (1) application of the
Act to him eliminated a pre-parole conditional supervision early release program
in violation of the Ex Post Facto Clause; (2) the Oklahoma Court of Criminal
Appeals (“OCCA”) erred in considering an affidavit submitted by the Oklahoma
Attorney General in his state post-conviction proceeding; and (3) the OCCA
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misinterpreted the provisions of the pre-parole program eliminated by the Act.
The magistrate judge recommended denial of habeas relief, and the district court
adopted the findings of the magistrate and denied relief. Because the district
court did not act on the issue of COA, it is deemed denied.
In his application for COA, construed liberally, Davis raises the same three
claims presented below. He also raises for the first time on appeal arguments
pertaining to lack of opportunity to object to the magistrate’s report and
recommendation. These arguments are plainly without merit. The record readily
reveals Davis’s extensive and timely objections to the magistrate’s
recommendation, that the district court reviewed de novo.
With respect to Davis’s claims that the OCCA erred in considering the
Oklahoma Attorney General’s affidavit in post-conviction proceedings and that it
erred in interpreting the Act, we find no “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Federal habeas review does not
extend to the correction of purely state law procedural errors that do not rise to
the level of a constitutional due process violation; the alleged procedural
irregularity in considering the affidavit does not represent a violation of the
constitutional due process standards for a post-conviction proceeding. Moreover,
insofar as Davis’s third claim challenges the state court’s interpretation of state
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law, it fails to state a claim that Davis “is in custody in violation of the
Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3).
Davis has, however, “made a substantial showing of the denial of a
constitutional right to the extent he is asserting the Act’s elimination of pre-
parole and early release programs violates the Ex Post Facto Clause.” Blue v.
Klinger, No. 98-6159, 1998 WL 738341, at **2 (10th Cir. Oct. 22, 1998)
(unpublished); see also McMeekan v. Klinger, No. 98-6247, 1998 WL 852551, at
**1 (10th Cir. Dec. 10, 1998) (unpublished). If he “can demonstrate he was
entitled to pre-parole or early release under the pre-Act statutes, the Act’s
elimination of those programs would in fact constitute a violation of the Ex Post
Facto Clause.” Blue, 1998 WL 738341, at **2 (citing Lynce v. Mathis, 519 U.S.
433 (1997)). However, we have held that a showing that “it was speculative at
best that [a petitioner’s] ultimate release date was affected by elimination of [pre-
parole conditional supervision] programs” does not present a viable Ex Post Facto
claim. Sparkman v. Klinger, No. 99-6244, 1999 WL 1083752, at **2 (10th Cir.
Dec. 2, 1999) (unpublished).
The OCCA found that because Davis was required to serve the balance of a
1979 sentence due to the revocation of his parole in that case, he was never within
twenty-one months of his projected release date, as required for eligibility for pre-
parole conditional supervision programs pursuant to 57 Okla. Stat. Supp. 1993, §
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365(A)(2), and that he could not meet the necessary conditions for release on
parole after completion of two concurrent 1989 sentences. The OCCA concluded
that Davis “has never established eligibility for the PPCS program. Therefore, he
cannot show he was disadvantaged by the repeal of the program or that such
repeal is an ex post facto law as applied to him.” Davis v. Oklahoma, No. PC 99-
18, at 2 (Okla. Crim. App. July 21, 1999). The district court agreed, holding that
Davis “has not established he was entitled to pre-parole before the enactment of
Truth in Sentencing.” (R. Doc. 13 at 1-2.) The district court did not err in
finding Davis presented no viable claim.
Davis’s request for a certificate of appealability is DENIED, and this
appeal is DISMISSED as to claims one and three. His request for a certificate of
appealability is GRANTED with regard to claim two, as to which the judgment of
the district court is AFFIRMED.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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