                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                       UNITED STATES CO URT O F APPEALS
                                                                       June 30, 2006
                                    TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                       Clerk of Court


 SID N EY A . WO R TH EN ,

                  Petitioner-A ppellant,                 No. 06-6058
          v.                                           (W .D. of Okla.)
 ERIC FRANKLIN, W arden, and                      (D.C. No. CV-05-1090-C)
 O K LA H OMA D EPA RTM EN T OF
 CO RRECTION S, ITS EM PLOYEES
 AN D STAFF, ET AL. *

                  Respondent-Appellee.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY **


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. ***


      Sidney Allen W orthen, an Oklahoma state prisoner, requests a Certificate

of Appealability (COA) to appeal the district court’s dismissal of his habeas

petition under 28 U .S.C. § 2241. Since W orthen appears pro se, we construe his

      *
        Petitioner’s caption only identifies W arden Franklin. Petitioner’s brief
offers no further identification of unnamed parties.
      **
          This order is not binding precedent, except under the doctrines of law of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; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
      ***
          After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). The

district court held that a COA should not issue because W orthen failed to make a

substantial showing of the denial of a constitutional right. W e agree, and

accordingly, DENY the request for a COA and DISM ISS the appeal.

                                  I. Background

      In 1982, W orthen was convicted of murder and sentenced to life

imprisonment. Two years later he pleaded guilty to aiding and abetting a prison

escape. For reasons unclear in the record, W orthen was at the same time

classified as either a level 3 or level 4 inmate, making him eligible to earn credits

which would allow him to obtain certain prison benefits.

      In April 2005, again for reasons not entirely explained by the record,

Oklahoma prison officials classified W orthen at level 4. Level 4 inmates are

eligible for earned credits that can work to shorten the length of their sentences,

as well as other prison benefits, such as a higher pay grade and spending

privileges at the prison canteen. Two months later, however, prison authorities

reexamined W orthen’s classification level. Because the 1984 escape conviction is

misconduct under Department of Corrections (DOC) policy OP-060107, they

concluded he was ineligible for level 4 and had been misclassified. Accordingly,

W orthen was demoted to level 2, where, under D OC’s current policy, he will

remain for the duration of his sentence. At level 2, W orthen cannot earn as many

good time credits, nor is he eligible for a number of prison benefits.

                                         -2-
      W orthen filed a habeas petition in district court claiming the DOC policy as

applied to his 1984 conviction was unlawful as (1) an ex post facto violation,

(2) a deprivation of due process, and (3) a denial of equal protection. He also

sought a declaratory judgment, arguing that application of the DOC policy OP-

060107 violated the ex post facto clause. Upon the magistrate judge’s

recom mendation, the district court concluded that the application of the DOC

policy did not violate W orthen’s rights and denied his request for a declaratory

judgment.

                                    II. Analysis

      A circuit court may issue a CO A “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). W here a district court “has rejected the constitutional claims on the

merits,” an applicant meets this standard by “demonstrat[ing] that reasonable

jurists would find the district court's assessment of the constitutional claims

debatable or wrong.” M iller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting

Slack v. M cDaniel, 529 U .S. 473, 484 (2000)). In conducting our analysis, we

need only engage in “an overview of the claims in the . . . petition and a general

assessment of their merits” rather than “full consideration of the factual or legal

bases adduced in support of the claims.” Id. at 336.




                                         -3-
A. Ex Post Facto Claim

      W orthen’s first argument is that the level 2 classification based on the 1984

escape conviction violates the Ex Post Facto Clause of the Constitution. To

violate the Ex Post Facto C lause, a law must be retrospective, and must “alte[r]

the definition of criminal conduct or increas[e] the punishment for [a] crime”

after it has been committed. Lynce v. M athis, 519 U.S. 433, 441 (1997). The

application of DOC policy did not increase W orthen’s punishment for assisting

the escape beyond that imposed in 1984. In 1984, Oklahoma law provided credits

only for school or work, and W orthen does not claim that DOC failed to provide

credits under the earlier system. In fact, W orthen did not lose any credits that he

had under the 1984 system since his misconduct occurred before the four-level

credit system w as adopted in 1988. See Smith v. Scott, 223 F.3d 1191, 1193 (10th

Cir. 2000). As to the imposition of a new classification system in 1988, W orthen

cannot show that it increased his punishment beyond that in place at the time of

his conviction.

      M oreover, even if the new classification system somehow imposed

retrospective punishment, habeas relief is still unavailable to W orthen. Pursuant

to Oklahoma law , W orthen is not eligible to have any time deducted from his

sentence on the basis of his credit level because he is serving a life sentence.

Okla. Stat. Ann tit. 57 § 138(a) (1915).    A writ of habeas corpus can only be

granted if W orthen has the possibility of expedited release.   See McIntosh v. U.S.

                                           -4-
Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997). The Supreme Court has

held that “constitutional claims that merely challenge the conditions of a

prisoner’s confinement . . . fall outside [the] core [of federal habeas corpus] and

may be brought pursuant to § 1983” instead. Nelson v. Campbell, 541 U.S. 637,

643 (2004). Therefore, habeas relief is unavailable to W orthen solely on the basis

of his prison classification. 1

B. Due Process Claim

       W orthen’s due process argument is similarly flawed. W orthen has no

cognizable liberty interest in avoiding application of DOC’s classification policy.

He has no hope of being released from prison any earlier on the basis of credits he

earns or is eligible to earn under the policy. Okla. Stat. Ann. tit. 57 § 138(a)

(1915); see Stephens v. Thom as, 19 F.3d 498 (10th Cir. 1994) (holding that New

M exico inmate serving life sentence has no liberty interest in good time credits

earned during first ten years of imprisonment where state law forbids the

application of such credits to reduce the sentence of a prisoner serving a life

sentence). W hile he may have a liberty interest in the right to earn additional




       1
         W orthen also asks that we rely on Wilkinson v. Dotson, 544 U.S. 74
(2005), in which the Supreme Court held that prisoners may challenge the
constitutionality of state parole procedures under 42 U.S.C. § 1983. 544 U.S. at
76. This case does not affect our analysis of W orthen’s claims because he has not
filed a § 1983 claim.

                                         -5-
credits for privileges while incarcerated, 2 he must vindicate this interest though a

§ 1983 claim. Nelson, 541 U.S. at 643. 3

C. Equal Protection Claim

      It is not disputable that W orthen’s equal protection claim also lacks merit.

The Equal Protection Clause “requires the government to treat similarly situated

people alike.” Barney v. Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998) (citing

City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985)). W orthen

alleges that two other inmates were involved in the 1984 misconduct, and that

they have not been penalized with the same demotion in credit level as W orthen.

W e have addressed similar arguments in the past, and concluded that the DOC has

discretion to classify inmates differently even because of minor differences in



      2
        W orthen had a liberty interest in credits already earned. See Waldon v.
Evans, 861 P.2d 311, 313 (Okla. Crim. App. 1993). The DOC did not take away
credits W orthen w as erroneously allowed to earn prior to the application of D O C
policy.
      3
         W orthen suggests that Wilson v. Jones, 430 F.3d 1113 (10th Cir. 2005)
and Branham v. Workman, 2006 W L 950656 (10th Cir. Apr. 13, 2006)
(unpublished), point to a different outcome. W e disagree. In Wilson, we held a
misconduct violation that reduced a prisoner’s credit level in a way which
inevitably affected the duration of his sentence deprived the inmate of a liberty
interest and therefore violated the due process clause. Wilson provides W orthen
no succor because, as noted above, W orthen’s misconduct violation cannot affect
the duration of his life sentence. Branham is also unhelpful to W orthen. In that
unpublished case, we held that an inmate could not prevail on a due process claim
for good time credits when the inmate w as never entitled to receive the credits in
the first place. The same could be said of W orthen’s right to earn future
credits— he was not entitled to earn the credits he has and certainly is not entitled
to earn any more under D OC policy.

                                          -6-
their histories or because some inmates present a higher risk of future misconduct

than others. Templeman v. Gunter, 16 F.3d 367, 368–71 (10th Cir. 1994).

W orthen has pointed to nothing that shows the disparate treatment lacks a rational

basis or is otherwise based on suspect characteristics. In sum, we agree with the

district court that the alleged similarities between Worthen’s misconduct and that

of other inmates is not sufficient to allege an equal protection violation. See id.

                                  III. Conclusion

      For these reasons, we DENY W orthen’s application for a COA and

DISM ISS this appeal.

                                                Entered for the Court



                                                Timothy M . Tymkovich
                                                Circuit Judge




                                          -7-
