                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                   March 26, 2008
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 DARRELL ELLIS,

              Petitioner - Appellant,                     No. 07-7092
       v.                                               (E.D. Oklahoma)
 GREG PROVINCE, Warden,                    (D.C. No. 6:04-CV-00369-RAW-KEW)

              Respondent - Appellee.




            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.


      Darrell Ellis, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) so that he may appeal the denial by the United States District

Court for the Eastern District of Oklahoma of his application for relief under

28 U.S.C. § 2241. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA for state

prisoner to appeal); Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005) (state

prisoner must obtain COA to appeal denial of application filed under § 2241).

We deny his request for a COA and dismiss his appeal because he fails to allege a

violation of federal law.
BACKGROUND

      Mr. Ellis was convicted of first-degree murder in Oklahoma state court and

sentenced to life imprisonment in 1980. On August 23, 2004, he filed his

application under § 2241. The district court denied it on the merits, and also

denied his request for a COA. On appeal he argues the following: (1) that he is

entitled to immediate release under the Eighth and Fourteenth Amendments

because, as he interprets Oklahoma law, he has discharged his sentence; (2) that a

1988 revision of Okla. Stat. tit. 57, § 138, which changed the manner in which

prisoners earn good-time credits, cannot be applied to him without violating the

Constitution’s Ex Post Facto Clause; and (3) that Oklahoma administrative policy

violates the Ex Post Facto Clause because it establishes more limited “incremental

benefits” for prisoners than those to which he was entitled under the prior policy.

DISCUSSION

      To obtain a COA, Mr. Ellis must make “a substantial showing of the denial

of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing is made if a

prisoner can “demonstrate that reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,

529 U.S. 473, 484 (2000).

      Mr. Ellis’s first claim is that he has a “vested liberty interest in the

Legislature’s unambiguous definition of a life sentence,” and that under

Oklahoma law he is unlawfully imprisoned because he has already finished

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serving his sentence. Aplt. Br. 8 (emphasis omitted). We do not disagree with

the claim that his constitutional rights would be violated by keeping him

incarcerated after he had served his term. But the length of that term is a matter

of Oklahoma, not federal, law. And Oklahoma’s highest court on such matters

has rejected his interpretation. See Ellis v. Beck, No. HC-2004-732, slip op. at 2

(Okla. Crim. App. July 30, 2004). This court must defer to the interpretation of

state law by a state’s highest court. See Estelle v. McGuire, 502 U.S. 62, 67

(1991) (“federal habeas corpus relief does not lie for errors of state law” (internal

quotation marks omitted)). Accordingly, Mr. Ellis has alleged no error that we

could cure.

      Mr. Ellis’s next two claims invoke the Ex Post Facto Clause of the

Constitution. “To show a violation of the Ex Post Facto Clause, a prisoner must

demonstrate that he has been subjected to a penal or criminal law that is

retrospective, and disadvantageous to the offender because it imposes greater

punishment.” Reed v. McKune, 298 F.3d 946, 954 (10th Cir. 2002) (brackets and

internal quotation marks omitted). A law does not violate the Clause unless it

either “alter[s] the definition of criminal conduct or increase[s] the punishment

for the crime.” Id. (internal quotation marks omitted and brackets revised).

      Regarding his second claim, Mr. Ellis argues that under the 1988 revision

of Okla. Stat. tit. 57, § 138, inmates classified at level 1 or level 2 receive fewer

good-time credits than they would have under the 1980 version of the statute,

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which apparently was in effect at the time of his offense. But the state district

court found that he is receiving credits under the law in effect in 1980. Because

Mr. Ellis has failed to provide clear and convincing evidence that this finding was

erroneous, see 28 U.S.C. § 2254(e)(1), we must accept that finding, which

establishes that his claim lacks merit.

      Turning to Mr. Ellis’s third claim, he asserts that he has been denied

“incidental benefits.” But his brief provides no description of what those

“benefits” are. We therefore cannot evaluate whether the alleged denial of

benefits implicates the Ex Post Facto Clause. Accordingly, we must hold that this

claim, too, is devoid of merit.

CONCLUSION

      We DENY Mr. Ellis’s request for a COA and AFFIRM the district court’s

dismissal of his application for habeas corpus. We deny the Request for Judicial

Notice as unnecessary.

                                          ENTERED FOR THE COURT


                                          Harris L Hartz
                                          Circuit Judge




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