                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         JAN 28 2003
                                    TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 CLAYTON SHANNON FANCHER,

          Petitioner - Appellant,
                                                       No. 02-6329
 v.                                               D.C. No. CIV-02-167-L
                                                    (W.D. Oklahoma)
 MARTY SIRMONS, Warden,

          Respondent - Appellee.


                             ORDER AND JUDGMENT *


Before EBEL, LUCERO and O’BRIEN, Circuit Judges.


      In 1991, Petitioner - Appellant Clayton Shannon Fancher was convicted in

Oklahoma state court of conspiracy to traffic in amphetamines and trafficking in

methamphetamine. He was sentenced to 27 ½ years imprisonment for each count.

Fancher did not directly appeal his conviction, but on September 14, 2001, he

filed a petition for a writ of habeas corpus in the District Court of Oklahoma


      *
        After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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order and judgment is not binding precedent, except under the doctrines of law of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.
County. That petition was denied, and he appealed the denial to the Oklahoma

Court of Criminal Appeals (OCCA). The OCCA concluded that it had no

jurisdiction to hear Fancher’s appeal because it was not filed within 30 days of

the state district court order denying his habeas petition.

      Proceeding pro se, Fancher filed a petition for a writ of habeas corpus in

the United States District Court for the Western District of Oklahoma on February

11, 2002, citing 28 U.S.C. § 2254 as the statutory basis for his petition. The

district court properly considered his petition as arising under 28 U.S.C. § 2241

because Fancher is challenging the execution of his sentence, not the validity of

his conviction. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000);

(Magis. Rep. & Recommendation at 1 n.1.). According to the Magistrate’s Report

and Recommendation, Fancher’s petition raised two issues: (1) that the repeal of

the Oklahoma Prison Overcrowding Emergency Powers Act, Okla. Stat. tit. 57, §

570 (1991) (repealed 2001) (the “Act”), operated as a ex post facto law in

violation of the United States Constitution; and (2) that his Fourteenth

Amendment right to due process was violated by the failure of the state to address

his claim about the repeal of the Act on the merits. On appeal to us, Fancher

insists that he raised a third issue that neither the magistrate judge nor the district




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court considered. 1 He claims that the repeal of the Act eliminated, in violation of

the Due Process Clause of the Fourteenth Amendment, a state-created liberty

interest in early-release credits that could be applied pursuant to the Act under

certain circumstances. We agree that Fancher also raised this third issue because

he mentioned it both in his petition and his objection to the Magistrate’s Report

and Recommendation, (B. in Supp. of Pet. at 7; Obj. to Magis. Rep. &

Recommendation at 12–13, 17), and because we liberally construe the allegations

of pro se litigants. Hunt v. Uphoff, 199 F.3d 1220, 1223 (10th Cir. 1999).

      The district court adopted the magistrate judge’s Report and

Recommendation in its entirety over Fancher’s objections and denied his petition.

Fancher filed a motion with this court to conduct this appeal in forma pauperis,

applies for a certificate of appealability (COA), and appeals the dismissal of his

petition for a writ of habeas corpus. The district court did not grant or deny a

COA, and in these circumstances we consider a COA to have been denied. See

Gen. Order of Oct. 1, 1996.




      1
       Fancher also claims that the magistrate judge and district court did not
consider his claims regarding the alleged prejudice he suffers under the law
passed to replace the repealed Prison Overcrowding Emergency Powers Act.
(App. for COA at 2.) However, as he indicated in his Objection to the
magistrate’s judge’s Report and Recommendation, (Obj. to Magis. Rep. &
Recommendation at 7), this is properly considered as part of ex post facto claim.
Therefore, we need not consider this claim separately.

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      As to the first two issues, we deny COA for substantially the reasons stated

in the magistrate judge’s Report and Recommendation. (See Magis. Rep. &

Recommendation at 1–3, 7–14.) Although, the magistrate judge and the district

court did not explicitly consider the third issue, we also deny COA as to that

issue. Fancher’s argument that he has been denied a state-created liberty interest

does not rise to the level of being a substantial showing of the denial of a

constitutional right because the argument has no merit and that conclusion is not

debatable among reasonable jurists. See Slack v. McDaniel, 529 U.S. 473, 484

(2000) (requiring appellants to show that reasonable jurists could debate whether

the petition should have been resolved differently or that the issues presented

deserved encouragement to proceed further before granting a COA).

      The Act created a system to ease overcrowding within Oklahoma’s prison

system. When the prison system reached 95% of its capacity, a state of

emergency could be declared requiring the Department of Corrections to reduce

the sentences of most inmates by 60 days. These sentence reductions were called

“CAP credits.” If this did not bring the prison population to below 95% of

capacity, additional CAP credits were applied.

      Fancher cites to the Supreme Court’s decision in Sandin v. Conner, 515

U.S. 472 (1995), in support of his claim that it was a violation of his due process




                                         -4-
rights to eliminate the emergency release credit system of the Act. 2 In Sandin, the

Supreme Court said that

      States may under certain circumstances create liberty interests which
      are protected by the Due Process Clause. But these interests will be
      generally limited to freedom from restraint which, while not
      exceeding the sentence in such an unexpected manner as to give rise
      to protection by the Due Process Clause of its own force, nonetheless
      imposes atypical and significant hardship on the inmate in relation to
      the ordinary incidents of prison life.

Id. at 484 (internal citations omitted). The repeal of the Act does not inflict upon

Fancher “atypical and significant hardship . . . in relation to the ordinary incidents

of prison life.” Indeed, in the ordinary course of prison life in Oklahoma, the

emergency release credits were rarely applied, and there was no reasonable

expectation that Fancher would benefit from their application in the future. As

the magistrate judge explained:

            The recent history of the Act underscores the fact that any
      disadvantage to Petitioner caused by its repeal is speculative and
      highly attenuated. . . . [E]ntitlement has always been contingent on
      the Governor’s decision to declare an emergency—as is amply
      demonstrated by the recent course of events.
            . . . . Here, the Governor has not only refused to declare an
      emergency that would trigger the Act’s provisions in recent years,
      but has memorialized his reasons for doing so in the executive orders
      referenced above. For example, the most recent executive order
      finding no overcrowding emergency states:



      2
        Fancher also cites to Hewitt v. Helms, 459 U.S. 460 (1983) in support of
his claim. However, the Supreme Court has disapproved of the methodology
employed in that case. See Sandin, 515 U.S. at 482–84.

                                         -5-
             The Department of Corrections has the ability to
             negotiate with and lease beds from private vendors if the
             need for prison beds exceeds current capacity. When the
             Oklahoma Prison Overcrowding Emergency Act was
             passed in 1984, the Department did not have this
             authority.
             ....
      In another of the executive orders, the Governor established a special
      commutation docket to control prison population, instructing the
      Pardon and Parole Board to, on a monthly basis, consider commuting
      the sentences of certain inmates who are to discharge their sentences
      in the next six months. These prison population control measures
      make it even less likely that the Act wold have been used, making
      any lengthening of Petitioner’s sentence speculative even if prison
      population is shown to be increasing.

(Magis. Rep. & Recommendation at 10–11 (internal citations omitted).)

      Under these circumstances, Fancher did not have a liberty interest in the

potential application of early release credits under the Act. The application of the

credits was not mandatory or certain, but contingent on events outside of

Fancher’s, or prison officials’, control. Therefore, Fancher’s rights under the Due

Process Clause of the Fourteenth Amendment were not violated by the repeal of

the Act.

      For the foregoing reasons, we DENY Fancher’s application for a certificate

of appealability and DISMISS this appeal. The motion to proceed in forma

pauperis is GRANTED.

                                       ENTERED FOR THE COURT

                                       David M. Ebel
                                       Circuit Judge

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