                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                             AUG 13 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 DENNIS OLEN COGGIN,

          Petitioner-Appellant,

 v.                                                             No. 99-6028
                                                                (W.D. Okla.)
 RON CHAMPION; THE ATTORNEY                              (D.Ct. No. 98-CV-1446-A)
 GENERAL OF THE STATE OF OKLAHOMA,

          Respondents-Appellees.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, Circuit Judges.



      After examining the briefs and 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); 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          This order and judgment is not binding precedent except under the doctrines of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.
       Appellant Dennis Olen Coggin, an Oklahoma state inmate appearing pro se,

appeals the district court’s decision dismissing his habeas corpus petition filed

pursuant to 28 U.S.C. § 2254. We deny his request for a certificate of

appealability and dismiss his appeal. 1



       A jury convicted Mr. Coggin of first degree felony murder, and the state

trial court sentenced him to a minimum sentence of life in prison with the

possibility of parole. On direct appeal, the Oklahoma Court of Criminal Appeals

affirmed his conviction and sentence.



       Mr. Coggin filed his federal habeas corpus petition claiming his sentence

must be retroactively modified based on the newly enacted Oklahoma Truth in

Sentencing Act, effective July 1, 1999, which establishes a new minimum

sentence of eighteen- to sixty-years in prison for first-degree felony murder. In

the event the new Act is not applied retroactively, he claimed violation of his



       1
          As to the timely filing of Mr. Cogin’s notice of appeal, the record shows the
district court rendered its judgment November 25, 1998, and Mr. Coggins delivered the
notice of appeal to prison authorities for mailing December 21, 1998. Even though Mr.
Coggin’s notice of appeal was not filed until January 13, 1999, under Rule 4(c) of the
Federal Rules of Appellate Procedure, his notice of appeal is deemed filed at the time of
his delivery to prison authorities. Thus, we find his notice of appeal timely filed within
thirty days of the district court’s entry of judgment and exercise our jurisdiction.


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equal protection rights for treatment different than those prisoners who received

shorter sentences when sentenced under the new Act. In addition, Mr. Coggin

suggested that because he has been classified under the new Act for the purposes

of parole, he should be similarly classified under the Act for the purpose of his

sentence.



      The federal district court assigned the matter to a magistrate judge who

recommended dismissing the petition. In first addressing Mr. Coggin’s failure to

exhaust his state remedies by not seeking post-conviction relief, the magistrate

judge determined: (1) the circumstances warranted consideration of his petition

on its merits, and (2) the Oklahoma Court of Criminal Appeals’ prior decisions,

adverse to Mr. Coggin, made any post-conviction filings futile.



      Proceeding to the merits of the petition, the magistrate judge determined

Mr. Coggin’s claims relating to his sentence did not raise a federal constitutional

question because his sentence was not outside the range of punishment allowable

by state law at the time of his sentence. Similarly, the magistrate judge found the

question of retroactive application of the new Act, effective July 1, 1999, a matter

of state law, and noted the Oklahoma Court of Criminal Appeals previously

determined the Act has no retroactive application. Finally, the magistrate judge


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rejected Mr. Coggin’s equal protection argument based on his finding that Mr.

Coggin was not similarly situated to those individuals committing the same crime

after the effective date of the Act.



      The district court adopted the magistrate judge’s recommendations and,

based on analogous rulings by this court, rejected Mr. Coggin’s argument that the

Act must be applied retroactively in order to change his life sentence to a

determinate sentence. As to Mr. Coggin’s conclusory argument that he should be

sentenced under the Act because he has been classified under the Act for purposes

of parole, the district court determined Mr. Coggin received the sentence and

parole eligibility standards in existence at the time of his crime, and had not

shown: (1) his parole period or sentence had increased, as required for a showing

of an ex post facto violation; or (2) criminals convicted and sentenced to life

imprisonment on the same date as Mr. Coggin received a determinative sentence

under the Act for parole eligibility purposes, as required for an equal protection

claim. Based on these rulings, the district court denied Mr. Coggin’s petition and

request for a certificate of appealability.



      On appeal, Mr. Coggin raises the same arguments raised in his petition and

addressed by the district court. We review the district court’s factual findings for


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clear error and its legal basis for dismissal of Mr. Coggin’s petition de novo. See

Jackson v. Shanks, 143 F.3d 1313, 1317 (10th Cir.), cert. denied, 119 S. Ct. 378

(1998). We presume the state court’s factual findings are correct and afford

deference to the state court’s construction of state law. Id. In order for Mr.

Coggin to proceed on appeal, he must make a substantial showing of the denial of

a constitutional right. 28 U.S.C. § 2253(c)(2). After a careful review of the

record, we agree with the district court that Mr. Coggin fails to make the requisite

showing, and note the district court’s disposition of this case is consistent with

our dismissal of similar habeas cases and the Oklahoma Court of Criminal

Appeals’ disposition of similar issues concerning the Act. See Castillo v. State,

954 P.2d 145 (Okla. Crim. App. 1998); Nestell v. State, 954 P.2d 143 (Okla.

Crim. App. 1998). For these reasons, we adopt the reasoning set forth in the

district court’s Order of November 25, 1998 and the magistrate judge’s Report

and Recommendation of October 28, 1998, and attach them hereto.



      Accordingly, we deny Mr. Coggin’s request for a certificate of

appealability and DISMISS the appeal.



                                        Entered by the Court:

                                        WADE BRORBY
                                        United States Circuit Judge

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