                                                                           F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           NOV 4 1998
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

 HENRY ROWLAND,

           Petitioner - Appellant,
 vs.                                                     No. 98-5028
                                                    (D.C. No. 95-cv-814-H)
 RITA ANDREWS,                                           (N.D. Okla.)

           Respondent - Appellee.


                              ORDER AND JUDGMENT *


Before PORFILIO, KELLY, and HENRY, Circuit Judges. **


       Petitioner-Appellant Henry Rowland, an inmate appearing pro se and in

forma pauperis, appeals from the district court’s denial of his petition for writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254. The district court determined

that while Mr. Rowland could show cause for a failure to timely appeal the denial

of state postconviction relief, he could not show actual prejudice nor 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        This order and judgment is not binding precedent, except under the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. 34.1.9. The cause is therefore ordered submitted without oral argument.
fundamental miscarriage of justice. Accordingly, Mr. Rowland was procedurally

barred from federal habeas review. Mr. Rowland filed his habeas petition prior to

the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty

Act of 1996. The district court refused to grant a certificate of probable cause.

      Mr. Rowland was convicted of murder and sentenced to life imprisonment

in 1959. After being paroled in 1974, the governor of Oklahoma ordered in 1989

that Mr. Rowland be reincarcerated to serve ten years of his life sentence due to a

parole violation. Mr. Rowland asserts that he is entitled to earned credits for

work and good conduct pursuant to Okla. Stat. Ann. tit. 57, § 138 (West 1991).

However, that statute also provides that “[n]o deductions shall be credited to any

inmate serving a sentence of life imprisonment.” Id. § 138(A).

      At issue, then, is whether Mr. Rowland’s reincarceration for ten years is to

be construed as a term of years, in which case he is eligible for earned credits, or

as a continuation of his life sentence. The district court determined that Mr.

Rowland will serve his life sentence “for the rest of his life whether he is

incarcerated in a penal institution or on parole.” R. doc. 17 at 5 (citing Morrissey

v. Brewer, 408 U.S. 471, 477 (1972) (“The essence of parole is release from

prison, before the completion of sentence, on the condition that the prisoner abide

by certain rules during the balance of the sentence.”) (emphasis added)). The

district court concluded that the earned credit provisions of § 138 do not apply to


                                         -2-
Mr. Rowland; thus he suffered no due process violation. We agree. Because Mr.

Rowland has failed to make a substantial showing of the denial of a constitutional

or federal right, see Barefoot v. Estelle, 463 U.S. 880, 893 (1983), we DENY him

a certificate of probable cause and DISMISS the appeal.




                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




                                        -3-
