                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 27 1998
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                               Clerk


CHARLES NESTELL,

          Petitioner-Appellant,

v.                                                       No. 98-6148
                                                   (W. District of Oklahoma)
KEN KLINGER; ATTORNEY                               (D.C. No. 98-CV-263)
GENERAL OF THE STATE OF
OKLAHOMA,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.


      After examining the briefs and 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 court therefore

orders the case submitted without oral argument.




      *
       This order and judgment is not binding precedent, except under the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.
       This case is before the court on Charles Nestell’s application for a

certificate of appealability.   See 28 U.S.C. § 2253(c)(1)(A) (providing that denial

of § 2254 petition is not appealable unless petitioner first obtains certificate of

appealability). Because Nestell has failed to make “a substantial showing of the

denial of a constitutional right,” he is not entitled to a certificate of appealability.

Id. § 2253(c)(2).

       Nestell was sentenced to ten years in the custody of the Oklahoma

Department of Corrections pursuant to his pleas of guilty to one count of assault

and battery with a deadly weapon and two counts of assault and battery on a

police officer. Nestell pleaded guilty to and was sentenced on the assault counts

in 1996. In 1997, the Governor of Oklahoma signed into law the Oklahoma

Truth in Sentencing Act (the “Act”).     See 1997 Okla. Sess. Laws ch. 133.

Among other particulars, the Act established a sentencing matrix that apparently

would have provided a lighter sentence than Nestell received under pre-Act law.

Nestell then filed a petition for collateral relief in Oklahoma. As grounds for the

petition, Nestell asserted that the Act applied retroactively and that he was

entitled to be resentenced under the Act’s sentencing matrix. He further asserted

that failure to apply the Act retroactively would violate the Equal Protection

Clause of the United States Constitution. The Oklahoma Court of Criminal

Appeals denied Nestell relief, concluding that the sentencing matrix portion of


                                           -2-
the Act did not apply retroactively and that the Equal Protection Clause did not

require Oklahoma to retroactively reduce the sentences of convicts each time it

revised its sentencing scheme to lessen culpability for a given crime.              Nestell v.

State , 954 P.2d 143, 144-45 (Okla. Crim. App. 1998)

       The heart of Nestell’s § 2254 petition is that the Oklahoma Court of

Criminal Appeals incorrectly decided, as a matter of Oklahoma law, that the

sentencing matrix provisions of the Act do not apply retroactively. As aptly

noted by the district court, however, these claims raise issues of state law which

are not cognizable in a federal habeas petition.         See King v. Champion , 55 F.3d

522, 527 (10       th
                        Cir. 1995); Cotner v. Hargett , 1998 WL 4334 at *3 (10      th
                                                                                         Cir.

Jan.8, 1998) (unpublished disposition) (implying that sentencing claims under the

Act raise only questions of state law). Furthermore, the district court noted

Nestell’s equal protection claim failed because he was not similarly situated to

those who committed their crimes after the effective date of the Act.               See Castillo

v. State , 954 P.2d 145, 147 (Okla. Crim. App. 1998) (rejecting exact equal

protection claim advanced by Nestell);           see also United States v. Haines        , 855 F.2d

199, 200 (5   th
                    Cir. 1988) (“[T]here is absolutely no constitutional authority for the

proposition that the perpetrator of a crime can claim the benefit of a later enacted

statute which lessens the culpability level of that crime after it was committed.”).

Finally, the district court noted that Nestell’s       ex post facto argument failed


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because the Act did not impose a punishment on Nestell greater than the statute

in effect at the time his crimes were committed.

       This court has reviewed Nestell’s application for a certificate of

appealability and opening brief, the district court’s Order, and the entire record

on appeal. That review makes clear that the district court’s resolution of the

issues raised by Nestell is not deserving of further proceedings, debatable among

jurists of reason, or subject to a different resolution on appeal.   See Barefoot v.

Estelle , 463 U.S. 880, 893 & n.4 (1983). Because Nestell has not demonstrated

his entitlement to a certificate of appealability, this appeal is hereby

DISMISSED . 1

                                           ENTERED FOR THE COURT:



                                           Michael R. Murphy
                                           Circuit Judge




       Nestell has filed a Motion to Present Newly Discovered Evidence with this
       1

court. The motion references a news capsule which, according to Nestell,
demonstrates that at least one Oklahoma district court applied the Act
retroactively in one case. Even assuming that the news capsule is accurate,
Nestell has not identified any authority for the proposition that a single erroneous
retroactive application of the Act in clear violation of the Oklahoma Court of
Criminal Appeals’ decision in Nestell entitles him to similar treatment.
Accordingly, Nestell’s motion is DENIED.

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