                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            NOV 8 1999
                                   TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

 ARLEY LEE DUNCAN,

          Petitioner-Appellant,
 v.                                                       No. 99-6029
                                                    (D.C. No. CIV-98-1226)
 RON CHAMPION; and OKLAHOMA                              (W.D. Okla.)
 DEPARTMENT OF CORRECTIONS,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before BRORBY, EBEL and LUCERO, Circuit Judges.


      This case is before the court on Arley Lee Duncan’s application for a

certificate of appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(A) (providing

that denial of a federal habeas petition is not appealable unless petitioner first

obtains a certificate of appealability). Because Duncan has failed to make “a

substantial showing of the denial of a constitutional right” in accordance with the


      *
        After examining 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)(2) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
requirements of 18 U.S.C. § 2253(c)(2), this court finds that he is not entitled to a

COA.

       In 1983, Duncan was charged with and pleaded guilty to first degree felony

murder in the District Court of Oklahoma County, Oklahoma, case number CRF-

83-3116. Duncan was sentenced to life imprisonment with the possibility of

parole. In accordance with Oklahoma law in effect at that time, Duncan’s life

sentence was of indeterminate length.

       The Oklahoma Truth in Sentencing Act (the “Act”) was signed into law in

1997 and modified various aspects of Oklahoma law pertaining to sentencing and

parole. See 1997 Okla. Sess. Laws ch. 133. As it pertains to the present case, the

Act provides that persons sentenced to life imprisonment with the possibility of

parole receive a determinate sentence of eighteen to sixty years. See Okla. Stat.

tit. 21, § 14. The Oklahoma Court of Criminal Appeals has interpreted this

amendment to be purely prospective in its effect. See Castillo v. Oklahoma, 954

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

Crim. App. 1998).

       Duncan filed a federal habeas petition pursuant to 28 U.S.C. § 2254 on

August 17, 1998 in United States District Court for the Western District of

Oklahoma. Duncan claimed that the failure to modify his indeterminate life

sentence pursuant to the sentencing provisions of the Act violates his equal


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protection and due process rights under the Constitution. Duncan argued that the

retrospective nature of the Act’s parole eligibility requirements compels

modification of his sentence. See Okla. Stat. tit. 57, § 332.7. Duncan reiterates

these arguments on appeal to this court.

      The district court, adopting the report and recommendation of the

magistrate judge, concluded that Duncan is not entitled to receive a determinate

sentence under the Act and found no violation of Duncan’s equal protection or

due process rights. After reviewing the relevant case law, the file and the

arguments made by Duncan, both below and on appeal, we conclude that he has

not made a substantial showing of the denial of a constitutional right for

substantially the same reasons Duncan’s claims were rejected by the federal

district court in its Order of November 25, 1998. Accordingly, we DENY COA

on all issues.

      The mandate shall issue forthwith.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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