                                                                                 F I L E D
                                                                          United States Court of Appeals
                                                                                  Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  DEC 3 2004
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                        Clerk

 HAROLD DEAN CLIFTON,

           Petitioner-Appellant,
 v.                                                            No. 04-6214
 STATE OF OKLAHOMA,                                    (D.C. No. 02-CV-00897-L)
                                                           (W.D. Oklahoma)
           Respondent-Appellee.


                                         ORDER*


Before TACHA, Chief Judge, BRISCOE, and HARTZ, Circuit Judges.



       Harold Dean Clifton, a state prisoner appearing pro se, seeks a certificate of

appealability (COA) to appeal the district court's dismissal of his 28 U.S.C. § 2241 habeas

petition. We deny the request for a COA and dismiss the appeal.

       Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). A COA can issue only “if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this

standard by demonstrating that jurists of reason could disagree with the district court's

resolution of his constitutional claims or that jurists could conclude the issues presented


       *
        This order is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel.
are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327.

After careful review of all of the filings and the record on appeal, we conclude the

requirements for issuance of a COA have not been met.

       Clifton is serving a 99-year sentence after conviction in 1981 of first degree

manslaughter. In 1984, he was convicted of escape from a penal institution and was

sentenced to a consecutive term of 26 months. Clifton filed his § 2241 petition on June

27, 2002, challenging the execution of his sentence. Specifically, he alleged “that in

November of 2001 he received a ‘special classification’ and was notified that based on

his 1984 escape conviction he would ‘no longer be eligible for any Level 3 or 4

advancement’ and that he is ‘no longer eligible for any privileges.’” ROA, Doc. 22 at 2.

Clifton asserted that retroactive application of a 1997 Oklahoma Department of

Corrections (DOC) policy reduced the good time credits he could earn and effectively

lengthened the period of his incarceration. The district court adopted the magistrate

judge’s report and recommendation and denied the petition.

       The magistrate judge found that, at the time Clifton was incarcerated, the good

time policy in effect allowed “one-day credit for each day that an inmate worked or

attended school” and “three days of credit for each day” an inmate was assigned to work

for a state, county, or municipality. Id. at 7. In 1988, the DOC amended the earned credit

statutes to “[provide] for credits . . . according to the time an inmate spent in one of four

classification levels.” Id. (citing Okla. Stat. tit. 57, §§ 138, 224). In 1990, the DOC


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altered the policy to allow tabulation of credits according to both the old and new systems

and to credit the inmate with the greater number. This policy was applied to Clifton. The

magistrate judge found that Clifton had been allotted points under the old system when

that system resulted in more points and, therefore, he continued to benefit from the old

system. Although the 1988 amendment stated that inmates like Clifton who had active

escape points could not be promoted to the two highest levels of the new system (Level

III or IV where inmates can earn up to 33 or 44 earned credits per month, respectively),

the magistrate judge found that Clifton had, “at various times, been placed on each of the

four class levels, earning up to 44 credits per month.” Id. at 8. The magistrate judge

found there was no ex post facto violation because Clifton’s sentence had not been

effectively lengthened due to application of the amended policy.

       The ex post facto test has two parts: (1) the law must be retrospective in that it

applies to events occurring before its enactment, and (2) it must disadvantage petitioner

by lengthening the period of incarceration or changing the definition of criminal conduct.

See Smith v. Scott, 223 F.3d 1191, 1194 (10th Cir. 2000). The district court found that

Clifton failed to satisfy the second prong of the test. Reasonable jurists would not find

that conclusion debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

       We DENY the request for a COA for substantially the same reasons as stated in

the report and recommendation filed May 28, 2004, and the district court’s order filed




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June 29, 2004, and DISMISS the appeal.



                                         Entered for the Court

                                         Mary Beck Briscoe
                                         Circuit Judge




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