                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                 UNITED STATES COURT OF APPEALS                              FEB 9 2001

                                  TENTH CIRCUIT                        PATRICK FISHER
                                                                                Clerk



 ARCHIE WATKINS, JR.,

          Petitioner-Appellant,

 v.                                                     No. 00-3233
                                                 (D.C. No. 98-CV-3362-DES)
 MICHAEL A. NELSON; ATTORNEY                               (Kansas)
 GENERAL OF THE STATE OF
 KANSAS,

          Respondents-Appellees.




                         ORDER AND JUDGMENT *


Before SEYMOUR, EBEL, and BRISCOE, Circuit Judges.


      Archie Watkins, Jr., a pro se state prisoner, filed this petition for a writ of

habeas corpus under 28 U.S.C. § 2254 claiming that the retroactivity provision of

the Kansas Sentencing Guidelines Act (KSGA) violates his right to equal

      *
       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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
protection and is impermissibly retroactive. The district court denied relief and

denied Mr. Watkins’ request for a certificate of appealability. Mr. Watkins

appeals. 1

       Mr. Watkins was convicted in 1987 in state court of aggravated burglary

and aggravated robbery, and sentenced under the habitual offender statute then in

effect to terms of fifteen years to sixty years and forty-five years to life.

Although the KSGA applies to crimes committed on or after July 1, 1993, see

K AN . S TAT . A NN . §§21-4704, 21-4705, it contains a limited retroactivity provision

applicable to certain offenders sentenced under the prior sentencing scheme

whose crimes and criminal history would have resulted in lower sentences under

the KSGA. See id. § 21-4724(b). Mr. Watkins is not eligible for treatment under

the retroactivity provision. He contends that, because those offenders not eligible

for retroactive consideration are treated differently merely on the basis of the date

on which they committed their crimes, the Act results in an unconstitutional

denial of equal protection. He also contends that because he is disadvantaged by

his exclusion from the benefit of the limited retroactivity provision, the Act is

impermissibly retroactive.




       1
        Mr. Watkins also lost in the district court on his claim that he was denied
his constitutional right of access to the courts. He does not appeal on this issue.

                                          -2-
          Upon careful review of Mr. Watkins’ equal protection argument in light of

the applicable case law, we conclude that his position is without merit. Both the

Kansas courts and the district court have addressed this argument and rejected it.

See Chiles v. State, 869 P.2d 707 (Kan.), cert. denied, 513 U.S. 850 (1994); Jones

v. Bruce, 921 F. Supp. 708 (D. Kan. 1996). For the reasons set out in those

opinions, we hold that Mr. Watkins’ ineligibility for the limited retroactivity

provided by the KSGA does not deny him equal protection.

          We are also unpersuaded that the KSGA is impermissibly retroactive.

While that Act may treat more favorably defendants sentenced under its

provisions and those who come under its limited retroactive provision, it does not

for that reason increase the punishment for those sentenced before it came into

effect.

          Accordingly, we conclude that Mr. Watkins has failed to make a

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

2253(c)(2). We therefore DENY his application for a certificate of appealability

and DISMISS his appeal.

                                         ENTERED FOR THE COURT


                                         Stephanie K. Seymour
                                         Chief Judge




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