                      UNITED STATES COURT OF APPEALS

                             FOR THE TENTH CIRCUIT



    MONTY RAY STILL,

                Petitioner-Appellant,

    v.                                                    No. 98-6227

    KEN KLINGER; ATTORNEY
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents-Appellees.


                                       ORDER
                                 Filed August 4, 1999


Before ANDERSON and KELLY , Circuit Judges, and           BROWN , * Senior District
Judge.


         Respondents-Appellees have filed a petition for rehearing from this court’s

order of July 2, 1999.

         The materials submitted by respondents have been reviewed by the

members of the hearing panel, who conclude that the original disposition was

incorrect. Accordingly, the petition is granted. The order and judgment of July 2,

1999, is withdrawn and the attached order and judgment is substituted.


*
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
    Entered for the Court,
    PATRICK FISHER, Clerk of Court

    By:   Keith Nelson
          Deputy Clerk




2
                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           AUG 4 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MONTY RAY STILL,

                Petitioner-Appellant,

    v.                                                   No. 98-6227
                                                     (D.C. No. 98-CV-135)
    KEN KLINGER; ATTORNEY                                (W.D. Okla.)
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before ANDERSON and KELLY , Circuit Judges, and           BROWN , ** Senior
District Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of


*
      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.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Petitioner Monty Ray Still appeals from an order of the district court

denying his petition for habeas relief filed pursuant to 28 U.S.C.          § 2254 . We

affirm. 1

       In 1994, Still was sentenced to fifteen-year concurrent sentences under the

Oklahoma statute providing for an enhanced sentence after former conviction of a

felony following his plea of guilty to charges of unlawful distribution of

marijuana and a controlled dangerous substance. He took no direct appeal.

       In 1997, Oklahoma enacted the Truth in Sentencing Act which changed the

sentencing matrix for various crimes and modified parole and early release

guidelines. Still then filed for post-conviction relief alleging that his        due process

rights and liberty interests had been violated when he was denied the opportunity

for early parole under programs which existed prior to passage of the new Act.

Still also contended the Act    violated the ex post facto clause of the       United States

Constitution. Still concluded he was entitled to a modification of his sentence

under the new Act and parole under the provisions of the prior acts.

       The Oklahoma Court of Criminal Appeals denied relief and Still



1
       This court previously granted Still a    certificate of appealability and ordered
briefing from respondent as to his ex post facto issue     .

                                               2
commenced this § 2254 action in federal district court. The federal court denied

relief on the basis that Still had not raised any constitutional claims upon which

he could obtain relief. On appeal, Still claims that the Act violates his ex post

facto rights by eliminating the early release programs under which he had been

approved for release.

         On appeal from the district court’s denial of a habeas petition, we review

the district court’s factual findings for clear error and its legal conclusions de

novo. See Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 19 99). However,

we may grant habeas relief only if the state court’s decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or . . . resulted in a

decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C.          § 2254(d)(1),

(2). 2

         The district court correctly ruled that Still stated no viable claim as far as

he requests modification of his sentence.        Oklahoma prisoners are not entitled to

resentencing under the new Act.      See Nestell v. Klinger , No. 98-6148, 1998 WL

544361, at **1 (10th Cir. Aug. 27, 1998);        see, e.g., Castillo v. State , 954 P.2d



2
       Still filed this petition January 27, 1998. Therefore, the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") apply.

                                             3
145, 147 (Okla. Crim. App. 1998) (sentencing matrices of new Act do not become

effective until July 1, 1998 and do not inflict greater punishment, thus, no ex post

facto violation could occur);   Nestell v. State , 954 P.2d 143, 144-45 (Okla. Crim.

App. 1998) (same).

       Still also contends that he had been approved for parole under the repealed

acts and has since been denied release based on provisions on the new Act which

have been applied retroactively to him. He also contends he relied on the

availability of the prior early release statutes when deciding to plead guilty.

       Retroactive application of an act that inflicts “a greater punishment, than

the law annexed to the crime, when committed,” is prohibited under the Ex Post

Facto Clause. Lynce v. Mathis , 519 U.S. 433, 441 (1997) (quotation omitted).

Such an application implicates “the central concerns of the   Ex Post Facto Clause:

the lack of fair notice and governmental restraint when the legislature increases

punishment beyond what was prescribed when the crime was consummated.”             Id.

(quotation omitted).

       The Oklahoma legislature enacted the early release programs at issue here

in 1993. Still committed the crimes to which he pled guilty in 1992. The

elimination in 1997 of the early release programs did not increase the punishment

prescribed at the time Still committed his criminal acts and, therefore, did not

offend the Ex Post Facto Clause.    See Weaver v. Graham , 450 U.S. 24, 30-31


                                            4
(1981); see also Woods v. Klinger , No. 98-6185, 1999 WL 79398    (10th Cir.

Feb. 19, 1999), petition for cert. filed, No. 98-9900 (U.S. June 18, 1999) . A

decrease in potential benefits after incarceration does not amount to an increase in

the punishment prescribed at the time the act was committed.

      Accordingly, the judgment of the United States District Court for the

Western District of Oklahoma is AFFIRMED.



                                                   Entered for the Court



                                                   Wesley E. Brown
                                                   Senior District Judge




                                         5
                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUL 2 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    MONTY RAY STILL,

                Petitioner-Appellant,

    v.                                                   No. 98-6227
                                                     (D.C. No. 98-CV-135)
    KEN KLINGER; ATTORNEY                                (W.D. Okla.)
    GENERAL OF THE STATE OF
    OKLAHOMA,

                Respondents-Appellees.




                            ORDER AND JUDGMENT            *




Before ANDERSON and KELLY , Circuit Judges, and           BROWN , ** Senior
District Judge.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of


*
      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.
**
      Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Petitioner Monty Ray Still appeals from an order of the district court

denying his petition for habeas relief filed pursuant to 28 U.S.C.          § 2254 . We

affirm in part and reverse in part and remand.       1



       In 1994, Still was sentenced to fifteen-year concurrent sentences under the

Oklahoma statute providing for an enhanced sentence after former conviction of a

felony following his plea of guilty to charges of unlawful distribution of

marijuana and a controlled dangerous substance. He took no direct appeal.

       In 1997, Oklahoma enacted the Truth in Sentencing Act which changed the

sentencing matrix for various crimes and modified parole and early release

guidelines. Still then filed for post-conviction relief alleging that his        due process

rights and liberty interests had been violated when he was denied the opportunity

for early parole under programs which existed prior to passage of the new Act.

Still also contended the Act    violated the ex post facto clause of the       United States

Constitution. Still concluded he was entitled to a modification of his sentence

under the new Act and parole under the provisions of the prior acts.




1
       This court previously granted Still a        certificate of appealability and ordered
briefing from respondent as to his one issue         .

                                              -2-
         The Oklahoma Court of Criminal Appeals denied relief and Still

commenced this § 2254 action in federal district court. The federal court denied

relief on the basis that Still had not raised any constitutional claims upon which

he could obtain relief. On appeal, Still claims that the Act violates his ex post

facto rights by eliminating the early release programs under which he had been

approved for release.

         On appeal from the district court’s denial of a habeas petition, we review

the district court’s factual findings for clear error and its legal conclusions de

novo. See Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 19 99). However,

we may grant habeas relief only if the state court’s decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or . . . resulted in a

decision that was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.” 28 U.S.C.        § 2254(d)(1),

(2). 2

         The district court correctly ruled that Still stated no viable claim as far as

he requests modification of his sentence.      Oklahoma prisoners are not entitled to

resentencing under the new Act.      See Nestell v. Klinger , No. 98-6148, 1998 WL



2
       Still filed this petition January 27, 1998. Therefore, the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") apply.

                                            -3-
544361, at **1 (10th Cir. Aug. 27, 1998);      see, e.g., Castillo v. State , 954 P.2d

145, 147 (Okla. Crim. App. 1998) (sentencing matrices of new Act do not become

effective until July 1, 1998 and do not inflict greater punishment, thus, no ex post

facto violation could occur);   Nestell v. State , 954 P.2d 143, 144-45 (Okla. Crim.

App. 1998) (same).

       However, Still also contends that he had been approved for parole under the

repealed acts and has since been denied release based on provisions on the new

Act which have been applied retroactively to him. He also contends he relied on

the availability of the prior early release statutes when deciding to plead guilty.

       We have previously held that petitioners situated as Still have stated claims

that may constitute a violation of the ex post facto clause.     See McMeekan v.

Klinger , No. 98-6247, 1998 WL 852551, at **1         (10th Cir. Dec. 10, 1998) ; Blue v.

Klinger , No. 98-6159, 1998 WL 738341, at **2          (10th Cir. Oct. 22, 1998); cf.

Moore v. Klinger, No. 98-6266, 1999 WL 50828, at **2, n.4 (10th Cir. Feb. 3,

1999) (affirming that petitioner had failed to state a viable claim as to his ex post

facto argument because he had “failed to show his entitlement to, or projected

participation in” the pre-release programs under the repealed statutes).

       Thus, if Still can establish he was entitled to pre-parole or early release

under the law as it existed prior to passage of the Truth in Sentencing Act, “the

Act’s elimination of those programs would in fact constitute a violation of the Ex


                                             -4-
Post Facto Clause.”   Blue, 1998 WL 738341, at **2 (citing Lynce v. Mathis , 519

U.S. 433, 445 (1997); Weaver v. Graham , 450 U.S. 24, 35-36 (1981));     see also

Warden v. Marrero , 417 U.S. 653, 663 (1974) (“[R]epealer of parole eligibility

previously available to imprisoned offenders would clearly present [a] serious

question under the ex post facto clause . . . of whether it imposed a greater or

more severe punishment than was prescribed by law at the time of the . . .

offense.” (quotation omitted)).

      Accordingly, the judgment of the United States District Court for the

Western District of Oklahoma is AFFIRMED in part and REVERSED in part.

This case is REMANDED to the district court for further proceedings consistent

with this order and judgment.



                                                     Entered for the Court



                                                     Wesley E. Brown
                                                     Senior District Judge




                                          -5-
