                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              MAR 23 2005
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                      Clerk

 MARVIN SEEGARS,

               Plaintiff-Appellant,                        No. 04-6335
          v.                                            (W.D. Oklahoma)
 RON J. WARD,                                      (D.C. No. 03-CV-1694-H)

               Defendant-Appellee.




                            ORDER AND JUDGMENT *


Before EBEL, McKAY, and HENRY, 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 F ED . R. A PP . P. 34(a)(2); 10 TH C IR . 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        This order and judgment is not binding precedent, except under the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.
                                I. BACKGROUND

      Mr. Seegars is an Oklahoma state prisoner proceeding pro se. In 1980, Mr.

Seegars was convicted of first degree murder and assault and battery with a

deadly weapon with intent to kill, and is serving a life sentence and a twenty-year

sentence respectively for each conviction.

      The Oklahoma Pardon and Parole Board did not recommend parole for Mr.

Seegars in 1996, 1997, or 1998. The Pardon and Parole Board informed Mr.

Seegars that, pursuant to the amended state statute and according to Oklahoma

Pardon and Parole Board policy, he would not be reconsidered for parole until

three years passed. The Pardon and Parole Board did not recommend parole in

2001 and set the next parole hearing for July 2004.

       In a previous action, Mr. Seegars filed a complaint pursuant to 42 U.S.C. §

1983 seeking declaratory and prospective injunctive relief. In his previous

complaint, Mr. Seegars alleged that title 57, section 332.7(F) of the Oklahoma

Statutes violated the Ex Post Facto Clause of the United States Constitution. See

O KLA . S TAT . 57, § 332.7(F) (Supp. 1999). The magistrate judge recommended

dismissal without prejudice based on Mr. Seegars’ failure to exhaust his

administrative remedies with the Oklahoma Department of Corrections. The

district court adopted that recommendation, and we affirmed the judgment of the




                                         -2-
district court in an unpublished order and judgment. See Seegars v. Ward, No.

03-6032, 2003 WL 21197126 (10th Cir. May 22, 2003).

       In the present action, Mr. Seegars again challenges subsection § 332.7(F)

(Supp. 1999) on the same grounds, contends he has exhausted his administrative

remedies, and seeks the same relief. The district court dismissed his complaint

and denied Mr. Seegars’ motion to amend his complaint. For the reasons stated

below, we AFFIRM the district court’s dismissal of Mr. Seegars’ complaint.



                                    II. DISCUSSION

       The amended statute was passed as part of the Truth in Sentencing Act,

which originally included matrices of sentencing ranges for various crimes.

Although the Oklahoma legislature soon repealed the sentencing matrices, the

matrices are still used in calculating parole eligibility dates. See O KLA . S TAT . tit.

57, § 332.7(A)(3) (Supp. 2004).

       As originally enacted, subsection A of the statute set forth formulas for

calculating the dates of parole eligibility for inmates like Mr. Seegars who were

serving sentences for crimes committed before July 1, 1998. Subsection (B)(2)

directed the Department of Corrections and the Pardon and Parole Board to

promulgate rules for the implementation of subsection A. Specifically, the rules

are to include “procedures for reconsideration of persons denied parole under this



                                            -3-
section and procedure[s] for determining what sentence the person would have

received under the applicable matrix.” O KLA . S TAT . tit. 57, § 332.7(B)(2) (Supp.

1997) (emphasis added).

      The statute was amended again in 1999, and the language at issue directing

the Department of Corrections and the Pardon and Parole Board to promulgate

rules in subsection (B)(2) became subsection (F). 1

      Mr. Seegars’ claim is this: under subsection (B)(2) he had a right to have

his life sentence modified to a determinable number of years. The Department

never promulgated the required rules under the 1997 law and as such, argues Mr.

Seegars, unlawfully subjected him to a harsher result.

      The magistrate judge determined that Mr. Seegars’ claim “is based on his

misinterpretation of Oklahoma law.” Rec. doc. 19, at 5 (Magistrate Judge’s

Report and Recommendation, filed July 23, 2004). The magistrate judge

recommended dismissal for failure to state a claim upon which relief could be

granted. The district court adopted the magistrate judge’s report and

recommendation and dismissed Mr. Seegars’ complaint with prejudice.




      1
        The rules shall include, but not be limited to, procedures for
reconsideration of persons denied parole under this section and procedure[s] for
determining what sentence a person eligible for parole consideration pursuant to
subsection A of this section would have received under the applicable matrix.

O KLA . S TAT . tit. 57, § 332.7(F) (Supp. 1999) (emphasis added).

                                         -4-
             The United States Constitution prohibits the States from passing
      any "ex post facto Law." U.S. C ONST . ART . I, § 10, ¶ 1. This Clause is
      aimed at laws that retroactively alter the definition of crimes or increase
      the punishment for criminal acts. Two critical elements must be present
      for a law to fall within the ex post facto prohibition: first, the law must
      be retrospective, that is, it must apply to events occurring before its
      enactment; and second, it must disadvantage the offender affected by it.

Henderson v. Scott, 260 F.3d 1213, 1215 (10th Cir. 2001) (other internal

quotation marks and citations omitted).

      In Henderson, we determined that § 332.7(D)(1), which extended from one

year to three years the period of time that may elapse for parole eligibility

determinations did not violate the Ex Post Facto Clause. We concluded that

“[w]hen viewed within the whole context of Oklahoma’s parole regulations, the

statute at issue in this case does not facially increase the likelihood of

punishment.” Id. at 1216.

      The same is true in this action. “The statute changed the formula for

calculating the date of an inmate’s eligibility for parole consideration.” Rec. doc.

19, at 5 (Magistrate Judge’s Report and Recommendation, filed July 23, 2004).

Although the statute’s language is a bit confusing, title 57, sections 332.7(B(2)

and 332.7(F) of the Oklahoma Statutes focus exclusively on the calculation of

parole eligibility dates and thus could not have altered the definition of criminal

conduct nor increased punishment for a crime. See O KLA . S TAT . tit. 57, §

332.7(B)(2) (Supp. 1997); id. § 332.7(F) (Supp. 1999). Absent such a showing,



                                          -5-
“the statute does not violate the Ex Post Facto Clause, and [Mr. Seegars’] claim

must fail.” Henderson, 260 F.3d at 1217.

                                III. CONCLUSION

       Accordingly, we AFFIRM the district court’s dismissal for failure to state

a claim upon which relief can be granted. We DENY Mr. Seegars’ motion for

appointment of counsel and we AFFIRM the district court’s denial of Mr.

Seegars’ belated motion to amend his complaint.

                                              Entered for the Court,


                                              Robert H. Henry
                                              Circuit Judge




                                        -6-
