                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAR 21 2000
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 ERNEST DEAN SANDERS,

           Petitioner - Appellant,
 vs.                                                    No. 99-6398
                                                  (D.C. No. CIV-99-809-C)
 JAMES SAFFLE,                                          (W.D. Okla.)

           Respondent - Appellee.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Mr. Sanders, an inmate appearing pro se, seeks to appeal from the denial of

his 28 U.S.C. § 2254 petition. Mr. Sanders is incarcerated in an Oklahoma

correctional facility on a conviction for larceny of merchandise from a retailer

after former conviction of two or more felonies, for which he was sentenced to

forty years imprisonment. On December 29, 1995, he escaped from the control of


       *
        This order and judgment is not binding precedent, except under the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.
the Oklahoma Department of Corrections (ODOC), but was returned to prison on

January 22, 1996. At the time of his escape, Mr. Sanders had accrued 5,446

earned credits, but after a disciplinary hearing at which he was found guilty of

escape, he lost all of these credits.

      In January 1999, Mr. Sanders requested that his credits be restored under

Okla. Stat. Ann. tit. 57 § 138(A) (“statute”), which provides: “Lost credits may be

restored by the warden or superintendent upon approval of the classification

committee.” He was informed that Department of Corrections Policy OP-060211

(“policy”) did not allow for the restoration of lost time credits to medium security

inmates or inmates with an escape misconduct. Mr. Sanders’ application for

relief was denied by the state district court and affirmed by the Oklahoma Court

of Criminal Appeals.

      On federal habeas, the state moved to dismiss the petition as time barred.

The magistrate judge denied the motion to dismiss but recommended ruling

against Mr. Sanders on the merits. The district court adopted the recommendation

and denied petitioner a certificate of appealability and in forma pauperis status on

appeal.

      Mr. Sanders does not challenge the authority of the ODOC to take away his

earned credits based on his escape. Rather, he challenges the decision not to

restore the credits upon his request in 1999. Mr. Sanders first argues that the


                                         -2-
statute and the policy are in open conflict, and therefore, the policy is

constitutionally invalid. This argument is without merit. The statute is not

mandatory or exclusive; the warden “may” restore lost credits based upon

whatever further requirements the ODOC may care to apply. The policy provides

these further requirements:

             the facility/district head may grant restoration of lost
             earned credit under the following conditions: . . .

             (3)    No restoration of any [earned credit] to inmates
                    with any of the following serious class X
                    misconducts . . . 16-1 [Escape misconduct]
             (4)    No restoration to inmates assigned to maximum
                    and medium security.

R. doc. 11, attachment to Ex. A (Rabon aff.). Therefore, Mr. Sanders’

inconsistency argument must fail. 1

      Second, Mr. Sanders alleges a violation of the Ex Post Facto Clause

because the policy did not become effective until well after his 1983 conviction.

As noted above, Mr. Sanders is not challenging the loss of his credits in 1995; he

only challenges the refusal to restore them in 1999. The policy was already in

force in 1999 (under either Oklahoma’s asserted effective date of April 7, 1995 or

Mr. Sanders’ alleged date of May 1, 1998), and, therefore, its application did not

violate the Ex Post Facto Clause. See Lynce v. Mathis, 519 U.S. 433, 441 (1997)


      1
       Mr. Sanders contends that he is “minimum security eligible,” but does not
dispute the escape misconduct.

                                          -3-
(“To fall within the ex post facto clause, a law must be retrospective – that is ‘it

must apply to events occurring before its enactment’. . . .”) (citation omitted).

      Finally, Mr. Sanders alleges violations of equal protection because “prior to

the DOC enactment of OP-060211 . . . , Oklahoma prison inmates at maximum,

medium and minimum security Oklahoma prison facilities, similar (if not

identical) situated as Mr. Sanders herein . . . were being restored lost earned

credits by the Wardens or superintendents . . . .” Pet. Br. (Form A-16) at 2a.

However, the policy of the ODOC in regard to inmates prior to the passage of the

policy is not relevant for purposes of equal protection because those inmates are

not “similarly situated” to petitioner. In order to show an equal protection

violation, Mr. Sanders would have to allege that medium security inmates with an

escape misconduct had their lost credits restored after the effective date of the

policy. He has failed to do so, and his equal protection claim must fail.

      We DENY a certificate of appealability, DENY the motion to proceed in

forma pauperis, and DISMISS the appeal.



                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




                                          -4-
