131 F.3d 151
97 CJ C.A.R. 3009
NOTICE:  Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties.  See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Ralph KEMPER, Petitioner-Appellant,v.Greg CAMP, Respondent-Appellee.
No. 97-6211.
United States Court of Appeals, Tenth Circuit.
Nov. 25, 1997.

Before BALDOCK, McKAY, and LUCERO, Circuit Judges.


1
ORDER AND JUDGMENT*


2
After examining Petitioner-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);  10th Cir.  R. 34.1.9.  The case is therefore ordered submitted without oral argument.


3
Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming his sentence was unconstitutional because the jury instructions were based on an ex post facto application of a penal statute.


4
We grant the certificate of appealability required by 28 U.S.C. § 2253.  However, we affirm for the reasons given by the magistrate judge in his Report and Recommendation filed February 10, 1997, and adopted by the district court in its Order filed May 16, 1997.  To the extent that Petitioner claims his due process rights were substantially affected by what he terms "ex parte communications," we hold that this argument has no merit.


5
AFFIRMED.



*
 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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


