                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                NOV 25 1997
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                    Clerk

 RALPH KEMPER,
               Petitioner-Appellant,                          No. 97-6211
 v.                                                   (D.C. No. CIV-96-1393-L)
 GREG CAMP,                                                  (W.D. Okla.)
               Respondent-Appellee.


                                  ORDER AND JUDGMENT*


Before BALDOCK, McKAY, and LUCERO, Circuit Judges.



       After examining Petitioner-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); 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

       Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming his

sentence was unconstitutional because the jury instructions were based on an ex post facto

application of a penal statute.



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
      We grant the certificate of appealability required by 28 U.S.C. § 2253. However,

we affirm for the reasons given by the magistrate judge in his Report and

Recommendation filed February 10, 1997, and adopted by the district court in its Order

filed May 16, 1997. To the extent that Petitioner claims his due process rights were

substantially affected by what he terms “ex parte communications,” we hold that this

argument has no merit.



      AFFIRMED.

                                                Entered for the Court


                                                Monroe G. McKay
                                                Circuit Judge




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