F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 3 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
HAROLD DEAN CLIFTON,
Petitioner-Appellant,
v. No. 04-6214
STATE OF OKLAHOMA, (D.C. No. 02-CV-00897-L)
(W.D. Oklahoma)
Respondent-Appellee.
ORDER*
Before TACHA, Chief Judge, BRISCOE, and HARTZ, Circuit Judges.
Harold Dean Clifton, a state prisoner appearing pro se, seeks a certificate of
appealability (COA) to appeal the district court's dismissal of his 28 U.S.C. § 2241 habeas
petition. We deny the request for a COA and dismiss the appeal.
Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). A COA can issue only “if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree with the district court's
resolution of his constitutional claims or that jurists could conclude the issues presented
*
This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327.
After careful review of all of the filings and the record on appeal, we conclude the
requirements for issuance of a COA have not been met.
Clifton is serving a 99-year sentence after conviction in 1981 of first degree
manslaughter. In 1984, he was convicted of escape from a penal institution and was
sentenced to a consecutive term of 26 months. Clifton filed his § 2241 petition on June
27, 2002, challenging the execution of his sentence. Specifically, he alleged “that in
November of 2001 he received a ‘special classification’ and was notified that based on
his 1984 escape conviction he would ‘no longer be eligible for any Level 3 or 4
advancement’ and that he is ‘no longer eligible for any privileges.’” ROA, Doc. 22 at 2.
Clifton asserted that retroactive application of a 1997 Oklahoma Department of
Corrections (DOC) policy reduced the good time credits he could earn and effectively
lengthened the period of his incarceration. The district court adopted the magistrate
judge’s report and recommendation and denied the petition.
The magistrate judge found that, at the time Clifton was incarcerated, the good
time policy in effect allowed “one-day credit for each day that an inmate worked or
attended school” and “three days of credit for each day” an inmate was assigned to work
for a state, county, or municipality. Id. at 7. In 1988, the DOC amended the earned credit
statutes to “[provide] for credits . . . according to the time an inmate spent in one of four
classification levels.” Id. (citing Okla. Stat. tit. 57, §§ 138, 224). In 1990, the DOC
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altered the policy to allow tabulation of credits according to both the old and new systems
and to credit the inmate with the greater number. This policy was applied to Clifton. The
magistrate judge found that Clifton had been allotted points under the old system when
that system resulted in more points and, therefore, he continued to benefit from the old
system. Although the 1988 amendment stated that inmates like Clifton who had active
escape points could not be promoted to the two highest levels of the new system (Level
III or IV where inmates can earn up to 33 or 44 earned credits per month, respectively),
the magistrate judge found that Clifton had, “at various times, been placed on each of the
four class levels, earning up to 44 credits per month.” Id. at 8. The magistrate judge
found there was no ex post facto violation because Clifton’s sentence had not been
effectively lengthened due to application of the amended policy.
The ex post facto test has two parts: (1) the law must be retrospective in that it
applies to events occurring before its enactment, and (2) it must disadvantage petitioner
by lengthening the period of incarceration or changing the definition of criminal conduct.
See Smith v. Scott, 223 F.3d 1191, 1194 (10th Cir. 2000). The district court found that
Clifton failed to satisfy the second prong of the test. Reasonable jurists would not find
that conclusion debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
We DENY the request for a COA for substantially the same reasons as stated in
the report and recommendation filed May 28, 2004, and the district court’s order filed
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June 29, 2004, and DISMISS the appeal.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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