                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           MAY 4 2000
                                  TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                Clerk

 WILLIAM HENRY GARNER,

               Petitioner-Appellant,                     No. 99-1478
          v.                                                 D. Colo.
 MICHAEL V. PUGH,                                   (D.C. No. 98-B-2637)

               Respondent-Appellee.


                            ORDER AND JUDGMENT           *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.




      Mr. Garner, appearing pro se, appeals the denial of his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2241. Mr. Garner is currently incarcerated

at the Federal Prison Camp at Florence, Colorado (“FPC Florence”). He has been

denied parole and contends that the U.S. Parole Commission’s (the

“Commission”) application of its 1998 parole guidelines, rather than a provision

in effect at the time of Mr. Garner’s conviction, violated the ex post facto clause


      *
        This order and judgment is not binding precedent, except under the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.
and his right to due process. For the reasons set forth below, we affirm the

district court’s denial of his petition.   **   We grant Mr. Garner’s motion to proceed

in forma pauperis and affirm.

       We review de novo the district court’s denial of habeas corpus relief.      See

Martinez v. Flowers , 164 F.3d 1257, 1258 (10th Cir. 1998). We review the

district court’s factual findings for clear error.     See id. Because Mr. Garner is

proceeding pro se, we liberally construe his petition.       See Haines v. Kerner , 404

U.S. 519, 520-21 (1972);      Collins v. Cundy , 603 F.2d 825, 827 (10th Cir. 1979).

       In 1993, Mr. Garner was sentenced by the Superior Court of the District of

Columbia to twelve years’ imprisonment for burglary and receipt of stolen

property, which offenses occurred in 1991. On August 5, 1998, the D.C. Board of

Parole transferred jurisdiction over parole issues concerning D.C. Code prisoners,

such as Mr. Garner, to the Commission, pursuant to D.C. Code Ann. § 24-1231.

See National Capital Revitalization and Self-Government Improvement Act of

1997, Pub. L. No. 105-33, § 11231(a)(1), 111 Stat. 712, 745 (codified at D.C.

Code Ann. § 24-1231). Mr. Garner takes issue with the application of the

Commission’s guidelines rather than the D.C. Code’s guidelines to his case.




       **
         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.

                                                -2-
       First, Mr. Garner contends that the application of the Commission’s

guidelines has disadvantaged him because he was not deemed parole eligible at

his initial hearing. As to Mr. Garner’s ex post facto claim, we have noted “that

the decided weight of authority is that guidelines of this sort, being guidelines

only, are not subject to the ex post facto prohibition.”    Resnick v. United States

Parole Comm’n , 835 F.2d 1297, 1301 (10th Cir. 1987). The Commission did not

violate the ex post facto clause by applying current guidelines.

       Mr. Garner also contends that the Commission’s application of its 1998

parole guidelines violated the Equal Protection Clause of the Constitution.

Because no suspect class or fundamental right is at issue, we inquire whether the

Commission’s action was “patently arbitrary and bears no rational relationship to

a legitimate governmental interest.”      Young v. United States Parole Comm’n   , 682

F.2d 1105, 1109 (5th Cir. 1982);       see Martinez , 164 F.3d at 1261. The magistrate

judge noted that Mr. Garner did not specify how he was treated differently than

any other similarly situated individuals.

       On appeal, Mr. Garner points to the application of the D.C. Code

guidelines to fellow D.C. Code offender Bruce Dorsey. The record suggests that

the date of Mr. Dorsey’s initial parole hearing preceded August 5, 1998 whereas

Mr. Garner’s occurred after August 5, 1998. The Commission applied its revised

guidelines to all prisoners, like Mr. Garner, who were given initial parole


                                              -3-
hearings on or after August 5, 1998.   See 28 C.F.R. § 2.80 (Guidelines for D.C.

Code offenders). Mr. Garner provides no evidence controverting these

conclusions. As such, Mr. Garner has not established that Mr. Dorsey or any

other inmate is similarly situated with him and has received different treatment.

Mr. Garner’s claims are vague and conclusory and must be dismissed.     See Hall v.

Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that “conclusory

allegations without supporting factual averments are insufficient to state a

claim”).

      For the reasons discussed above, the district court’s denial of Mr. Garner’s

28 U.S.C. § 2241 petition for a writ of habeas corpus is AFFIRMED.



                                        Entered for the Court,



                                        Robert H. Henry
                                        Circuit Judge




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