                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         NOV 23 2001
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 ARDIE D. HARRIS,

           Petitioner - Appellant,
 vs.                                                   No. 01-6074
                                                 (D.C. No. 99-CV-1051-L)
 JAMES L. SAFFLE,                                      (W.D. Okla.)

           Respondent - Appellee.


                              ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **




       Petitioner-Appellant Ardie D. Harris, an inmate appearing pro se, seeks a

certificate of appealability (“COA”) allowing him to appeal the district court’s

order denying relief on his petition for a writ of habeas corpus, 28 U.S.C. § 2254.

Because Mr. Harris has failed to make a “substantial showing of the denial of a



       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny his request

and dismiss the appeal.

      In 1981, Mr. Harris pleaded guilty to one count of robbery with firearms,

one count of second degree rape, and one count of oral sodomy. The trial court

sentenced Mr. Harris to terms of imprisonment of five to fifty years for the

robbery conviction, fifteen years for the rape conviction, and ten years for the oral

sodomy conviction. Mr. Harris did not attempt to withdraw his guilty plea nor did

he file a direct appeal.

      The rather long and involved procedural history of Mr. Harris’s current

appeal began in 1985, when he filed his first application for post-conviction relief

in Oklahoma district court challenging his indeterminate sentence of five to fifty

years. After the district court denied the application, the Oklahoma Court of

Criminal Appeals (“OCCA”) remanded the case for a proper order with findings

of fact and conclusions of law. The district court entered a new order denying the

application which was affirmed by the OCCA. In 1990, Mr. Harris filed his

second application for post-conviction relief again challenging the indeterminate

sentence and also adding a claim that trial counsel’s failure to file a direct appeal

constituted ineffective assistance of counsel. The district court denied this second

application and the OCCA subsequently affirmed the district court.

      On May 1, 1996, Mr. Harris filed in the district court his third application


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for post-conviction relief alleging that the reverse certification statute had been

declared void and that he received ineffective assistance of counsel. On July 24,

1996, Mr. Harris filed an application entitled “Subsequent Application for Post

Conviction Relief Request for Appeal Out of Time,” Doc. 12, Exh. B, informing

the district court that his co-defendant had received post-conviction relief on

April 25, 1996. Mr. Harris contended that equal protection principles required

that he be granted the same relief as his co-defendant, viz., modification of his

indeterminate sentence to a term of years. The district court denied this third

application, but did not reference Mr. Harris’s equal protection argument raised in

the July 24, 1996 application. Despite the lack of a reference to this issue in the

district court’s order, the OCCA rejected the argument on the ground that Mr.

Harris had failed to raise this claim on direct appeal or in any of his prior

applications for post-conviction relief. The OCCA affirmed the district court’s

denial of Mr. Harris’s third application and stated that Mr. Harris had exhausted

his state remedies regarding the issues raised in post-conviction relief and barred

any subsequent applications.

      Mr. Harris filed his federal habeas petition claiming (1) that the state

district court had violated his rights to due process and equal protection by

refusing to modify his sentence as had been done for his co-defendant, (2) that the

state district court violated his constitutional rights by not holding an evidentiary


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hearing before denying his application for post-conviction relief, and (3) that the

procedures used by the district court and the OCCA were inadequate to protect his

rights. The district court assigned the case to a magistrate judge, who

recommended denial of Mr. Harris’s petition. The federal district court adopted

the recommendation in its entirety and entered an order denying Mr. Harris’s

petition.

      On appeal, Mr. Harris asserts that the magistrate erred in determining that

the Equal Protection Clause does not warrant relief in his case. In the

recommendation, the magistrate proceeded to the merits of Mr. Harris’s equal

protection claim because it determined that Mr. Harris could not reasonably have

known that such an argument existed until some time after the April 25, 1996

unpublished order in his co-defendant’s case became available. The procedural

bar in the Uniform Post Conviction Procedure Act therefore could not apply

because the equal protection argument was not a ground for relief “available” at

the time filing of a direct appeal was required nor during the time he filed his

applications for post-conviction relief. See Okla. Stat. tit. 22 § 1086 (requiring

“all grounds for relief available” to be raised in the original, supplemental, or

amended application for post-conviction relief). In a thorough analysis, the

magistrate concluded that Mr. Harris had failed to show that he and his co-

defendant were similarly situated and therefore could not meet the threshold


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requirement for an equal protection challenge. See United States v. Alfonso, 738

F.2d 369, 373 (10th Cir. 1984) (“[A]bsent specific allegations of constitutionally

impermissible motivation . . . a sentence within the statutory limits is again not

open to review.”); see also Jones v. Superintendent of Rahway State Prison, 725

F.2d 40, 43 (3d. Cir. 1984) (requiring allegations of unconstitutional

discrimination for equal protection challenge to disparate sentence). Although

Mr. Harris claims his disparate sentence occurred due to his indigence, the district

court recognized that indigents do not constitute a suspect class and the disparate

sentences therefore need only bear a rational relation to a legitimate state end.

See Curley v. Perry, 246 F.3d 1278, 1285 (10th Cir. 2001). This court has

considered the briefs, the magistrate’s recommendation, and the entire appellate

record. Our review demonstrates that the equal protection issue Mr. Harris seeks

to raise on appeal is not debatable among jurists, deserving of further

proceedings, or subject to a different resolution on appeal. See Slack v.

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

      Mr. Harris also asserts that the magistrate failed to address his due process

claim. In so asserting, Mr. Harris states that the government could have no

legitimate object in treating him differently than his co-defendant. We state no

opinion on the treatment of Mr. Harris’s co-defendant, but we must stress that Mr.

Harris’s sentence on the robbery charge was proper under the relevant statute at


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the time. The relevant statute in effect at the time of Mr. Harris’s sentence

prevented a minimum sentence from exceeding one-third of a prisoner’s

maximum sentence. See Okla. Stat. tit. 57, § 353 (1981). Thus, with Mr. Harris’s

fifty-year maximum sentence, his minimum sentence could not exceed

approximately seventeen years and his five-year minimum sentence does not

exceed this amount. Further, the imposition of an indeterminate sentence has

been determined constitutional. See Baker v. Cowley, 931 F.2d 1394, 1396 n.5

(10th Cir. 1991) (approving sentence of ten years to life by Oklahoma court)

(citing Dreyer v. Illinois, 187 U.S. 71, 78–84 (1902)); Niemann v. Parratt, 596

F.2d 316, 318 (8th Cir. 1979) (no constitutional error where Nebraska courts

permitted indeterminate sentences for defendants convicted of second-degree

murder). We conclude that Oklahoma courts have a legitimate objective in

adhering to statutory commands which do not violate the Constitution. As a

result, we reject Mr. Harris’s due process claim.

      Accordingly, we DENY Mr. Harris’s motions for a COA and IFP and

DISMISS his appeal.

                                       Entered for the Court



                                       Paul J. Kelly, Jr.
                                       Circuit Judge



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