                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                               JUL 11 1997
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk


 LUTHER ANDERSON,

          Petitioner-Appellant,
                                                           No. 96-7110
               v.                                   (D.C. No. 94-CV-385-BU)
                                                           (E.D.Okla.)
 RON CHAMPION, Warden;
 ATTORNEY GENERAL OF THE
 STATE OF OKLAHOMA,

          Respondents-Appellees.




                             ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, 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. Therefore, the case is

ordered 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          This order and judgment is not binding precedent, except under the doctrines of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.
      Petitioner Luther Anderson, an Oklahoma state prisoner appearing pro se,

requests a certificate of appealability to appeal the district court's denial of his 28

U.S.C. § 2254 petition for habeas corpus. We conclude Anderson is not entitled

to a certificate of appealability and dismiss the appeal.

      Anderson was charged in state district court in July 1974 with five counts

of first degree murder, but the information was amended prior to trial and four

counts were dropped. He was convicted of one count of second degree murder

and sentenced to imprisonment of ten years to life pursuant to Okla. Stat. tit. 21,

§ 701.4. The conviction was upheld on direct appeal. Anderson v. State, 551

P.2d 1155 (Okla. Crim. App. 1976).

      Anderson filed an application for post-conviction relief in state district

court in 1989. After erroneously concluding his sentence was imposed pursuant

to Okla. Stat. tit. 57, § 353, the court on December 1, 1989, granted the

application and modified Anderson's sentence to a term that required immediate

release from imprisonment. The state did not appeal this ruling but, in February

1990, it filed an information charging Anderson with the four counts of first

degree murder that had been dropped from the 1974 information. The state

district court dismissed two of the counts and Anderson was bound over for trial

on the remaining two counts. Anderson, who was represented by counsel, filed a

petition for writ of habeas corpus or mandamus in the Oklahoma Court of


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Criminal Appeals, and all parties to the proceeding (apparently including the state

district court) were directed to file responses addressing the 1989 modification of

Anderson's sentence. The Court of Criminal Appeals concluded the state district

court had acted without jurisdiction in modifying Anderson's sentence. In re

Anderson, 803 P.2d 1160, 1163 (Okla. Crim. App. 1990). The court ordered that

Anderson's 1974 sentence be reinstated and that he be re-committed to continue

serving that sentence. The court dismissed the four revived first degree murder

charges with prejudice on the grounds that prosecution of those charges would

violate Anderson's due process rights.

      Anderson filed this § 2254 action in federal district court on June 29, 1994.

The district court adopted the magistrate's findings and dismissed the action on

September 17, 1996. Anderson has filed an application for a certificate of

probable cause, which we construe as an application for certificate of

appealability under 28 U.S.C. § 2253(c). See Hogan v. Zavaras, 93 F.3d 711

(10th Cir. 1996).

      The Antiterrorism and Effective Death Penalty Act (AEDPA) requires a §

2254 petitioner to obtain a certificate of appealability prior to appealing a final

order of the district court. 28 U.S.C. § 2253(c)(1)(A). A habeas petitioner is

entitled to a certificate of appealability only if he has made a "substantial showing

of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). We have held


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that the standard for granting a certificate of appealability under the AEDPA is

the same as the standard set out by the Supreme Court in Barefoot v. Estelle, 463

U.S. 880 (1983). See Lennox v. Evans, 87 F.3d 431, 434 (10th Cir. 1996), cert.

denied 117 S. Ct. 746 (1997). Under the Barefoot standard, a certificate will

issue only where the petitioner has demonstrated the issues raised are debatable

among jurists of reason, a court could resolve the issues differently, or the

questions presented are deserving of further proceedings. See Barefoot, 463 U.S.

at 893 n.4.

      Anderson contends the state district court acted correctly in modifying his

sentence in 1989. At the time of his conviction, Anderson was properly sentenced

under Okla. Stat. tit. 21, § 701.4, which provided that "[e]very person convicted

of murder in the second degree shall be punished by imprisonment in the State

Penitentiary for not less than 10 years nor more than life." Although the

Oklahoma legislature subsequently enacted Okla. Stat. tit. 57, § 353 (providing, in

part, that "[t]he minimum term may be less than, but shall not be more than, one-

third (1/3) of the maximum sentence imposed by the court"), that statute is

inapplicable to Anderson because he was sentenced prior to its enactment. See

Harris v. Hargett, 962 F.2d 17, 1992 WL 92765 at *1 (10th Cir.), cert. denied 506

U.S. 883 (1992).




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      Anderson also argues the Oklahoma Court of Criminal Appeals erred in

reinstating his original sentence because the statute under which he was originally

sentenced was repealed in 1976. The fact that the statute under which he was

sentenced was subsequently repealed does not entitle Anderson to resentencing.

See Pollard v. State, 521 P.2d 400, 402 (Okla. Crim. App. 1974) ("'statutes

repealing penalties for offenses committed in this state operate prospectively and

are applicable only to offenses committed after the statute became effective'").

Anderson's original sentence was mandatory and constitutional. See Harris, 1992

WL 92765 at *1; Riggs v. Branch, 554 P.2d 823, 829-30 (Okla. Crim. App. 1976).

      Finally, Anderson contends the Oklahoma Court of Criminal Appeals

lacked jurisdiction under its own procedural rules to review the state district

court's decision to modify his sentence. Notably, however, Anderson does not

allege his federal constitutional rights were violated by this alleged violation of

state procedural rules. Thus, the issue is not cognizable under § 2254. Harvey v.

Shillinger, 76 F.3d 1528, 1534 (10th Cir.) ("the only injury that will suffice to

support petition for habeas corpus relief is an injury to a petitioner's federally

protected right; state law injuries cannot and do not suffice"), cert. denied 117 S.

Ct. 253 (1996); see also Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991)

("We are not persuaded that a constitutional violation necessarily occurs when the

convicting state court acts without jurisdiction purely as a matter of state law.");


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United States v. Mancusi, 415 F.2d 205, 209 (2d Cir. 1969) ("no federal court to

our knowledge has ever granted a writ where a state court's asserted lack of

jurisdiction resulted solely from the provisions of state law").

      The application for a certificate of appealability is DENIED and the appeal

is DISMISSED. The mandate shall issue forthwith.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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