                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              OCT 30 1997
                              TENTH CIRCUIT
                                                                          PATRICK FISHER
 JORGE M. HERRERA,                                                                 Clerk

               Petitioner-Appellant,
                                                     Case No. 97-6078
 v.
                                                     (D.C. 96-728-R)
 FRANK KEATING, Governor;                            (Western District of Oklahoma)
 ANITA BRIDGES, Parole Board
 Member; SUSAN B. LOVING, Parole
 Board Member; NADINE
 MCPHEARSON; RAY H. PAGE; C.
 MICHAEL ZACHARIAS; LARRY
 FIELDS, DOC Director; MARZEE
 DOUGLAS; DREW EDMONDSON,

               Respondents-Appellees.



                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



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

determined 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 case is therefore

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               This order and judgment is not binding precedent, except under the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-Appellant Jorge Herrera, appearing pro se and proceeding in

forma pauperis, is an inmate incarcerated in Texas pursuant to an agreement with

the Oklahoma Department of Corrections. He appeals the district court’s denial

of his 28 U.S.C. § 2254 petition and application for a certificate of appealability.

Both the district judge and the magistrate judge, each in a thorough and well-

reasoned manner, noted that insofar as Mr. Herrera’s claims could be construed as

an action under § 1983, they should be dismissed as frivolous pursuant to 28

U.S.C. § 1915. For the reasons stated herein, we affirm.



                                  I. DISCUSSION



      Mr. Herrera contends on appeal that (1) the Oklahoma Pardon and Parole

Board’s 1991 adoption of a five-year deferral of an inmate’s consideration for

parole is an ex post facto law that violates Article I, § 10, of the United States

Constitution; (2) he is entitled to an evidentiary hearing because the district court

improperly engaged in weighing the disputed facts; and (3) the magistrate judge

erred in denying his request for appointment of counsel.

      In his petition, Mr. Herrera alleges in part that the decision to deny him

parole was in retaliation for lawsuits he had filed against several parole officers.

He prays for redress of his alleged constitutional violations and for the


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appointment of counsel.

      On appeal Mr. Herrera claims that the retaliatory motive also prompted the

decision to defer his parole consideration for five years. As Mr. Herrera has

exhausted his state remedies on these claims, the district court was correct in

allowing Mr. Herrera to proceed under § 2254, insofar as he claims he was

unconstitutionally denied parole, because a “judgment in favor of [Mr. Herrera]

would necessarily imply the invalidity of his conviction and sentence.” Heck v.

Humphrey, 512 U.S. 477, 487 (1994); see California Dep’t of Corrections v.

Morales, 514 U.S. 499, 504-05 (1995) (addressing habeas corpus challenge to

deferred parole hearings where petitioner alleged in part that the postponement of

parole consideration under amended procedures may delay the grant of parole and

result in an Ex Post Facto Clause violation).

      The district court was also correct to construe Mr. Herrera’s complaint

liberally as an action seeking relief under § 1983, insofar as it seeks to correct

allegedly constitutionally defective parole procedures See Richards v. Bellmon,

941 F.2d 1015, 1018 n. 3 (10th Cir. 1991) (“A single complaint may seek relief

partly under § 2254 and partly under § 1983.”); see also Preiser v. Rodriguez, 411

U.S. 475, 499 n.14 (1973) (holding that habeas and § 1983 claims may be

litigated simultaneously). As such, we also liberally construe his complaint as

seeking relief under both § 2254 and § 1983. See Haines v. Kerner, 404 U.S. 519,


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520-21 (1972) (per curiam); see also Raymer v. Enright, 113 F.2d 172 (10th Cir.

1997) (addressing § 1983 Ex Post Facto Clause challenge to Colorado’s statutes’

decreased frequency of parole suitability hearing).

      “We review de novo the district court’s legal conclusions in dismissing a

petition for a writ of habeas corpus.” Davis v. Executive Dir. of Dep’t of

Corrections, 100 F.3d 750, 756 (10th Cir. 1996), cert. denied, 117 S. Ct. 828

(1997). We review the district court’s factual findings for clear error. See id.

      We review the § 1915 dismissal of Mr. Herrera’s § 1983 claims for abuse

of discretion. See Denton v. Hernandez, 504 U.S. 25, 33 (1992). We also may

consider whether the plaintiff was proceeding pro se, whether the district court

inappropriately resolved genuine issues of material fact, whether the district court

applied erroneous legal conclusions, whether the district court sufficiently

explained its dismissal, and whether the dismissal was with or without prejudice.

Id. at 34. We turn now to Mr. Herrera’s contentions.



      A. Ex Post Facto Violation

      Mr. Herrera was sentenced on May 28, 1987 to two concurrent 60-year

sentences for distribution of heroin. The Oklahoma Pardon and Parole Board

considered and denied him parole in 1990, 1991, 1992, and 1993. After his 1993

denial, his consideration for parole was deferred for five years, pursuant to a 1991


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policy allowing such deferrals. See Okla. Stat. tit. 57, § 332.7(A) (Supp. 1994)

(“The Pardon and Parole Board shall adopt policies and procedures governing

parole consideration for such persons.”).

      Mr. Herrera alleges that this five-year deferral violates the Ex Post Facto

Clause. “To fall within the ex post facto prohibition, a law must be retrospective-

-that is ‘it must apply to events occurring before its enactment’--and it ‘must

disadvantage the offender affected by it[,]’ by altering the definition of criminal

conduct or increasing the punishment for the crime.” Lynce v. Mathis, 117 S. Ct.

891, 896 (1997) (internal citations omitted) (quoting Weaver v. Graham, 450 U.S.

24, 29 (1981)).

      Mr. Herrera alleges that the parole policy in effect in 1987 entitled him to

parole consideration every twelve months after his initial consideration, and as

such, the new policy increases his punishment. “The [new policy] has no effect

on the date of any prisoner’s initial parole suitability hearing; it affects the timing

only of subsequent hearings.” Morales, 514 U.S. at 511. “Rather than changing

the sentencing range applicable to covered crimes, the [Oklahoma Pardon and

Parole Board’s 1991 policy] simply ‘alters the method to be followed’ in fixing a

parole release date under the identical substantive standards.” Id., at 507-08

(quoting Miller v. Florida, 482 U.S. 423, 433 (1987)). See also Bias v. Redbird,

No. 95-6358, 1996 WL 270964, at *1 (May 22, 1996) (noting that “the 1991


                                            5
change in [Oklahoma’s] parole policy ‘had no effect’ on the standards for fixing

[petitioner’s] initial date of ‘eligibility’ for parole, or for determining his

‘suitability’ for parole and setting his release date”) (internal citations omitted)

(quoting Morales, 514 U.S. at 507)).

       Also unchanged is the discretion retained by the Pardon and Parole Board

in making its recommendations for parole to the Governor. Compare Okla. Stat.

Ann. tit. 57, § 332.8 (Supp. 1994) with Okla. Stat. Ann. tit. 57, § 332.8 (1991).

See also Morales, 514 U.S. at 513 (“[T]he . . . legislation at issue creates only the

most speculative and attenuated risk of increasing the measure of punishment

attached to the covered crimes.”). Finally, Mr. Herrera makes no attempt to

distinguish the revised Oklahoma policy from the amended statute at issue in

Morales, and the record is devoid of any evidence that would support such a

claim. As such, Mr. Herrera has not demonstrated that there is a “sufficient risk”

that the measure of his punishment has changed. Id. at 509. Accordingly, there is

no implication of the Ex Post Facto Clause here. 1


       1
           In his Statement of Facts, Mr. Herrera lists the following as “facts . . . presented
for review:” Whether the five-year deferral violated his right to equal protection; whether
it was applied in an arbitrary and capricious manner; whether it was ordered in retaliation
for his litigious nature, specifically involving suits against Pardon and Parole Board
members, and for his assistance to other inmates in litigations against Pardon and Parole
Board members. See Aplt’s Br. at 6. Liberally construing Mr. Herrera’s pro se petition,
see Haines, 404 U.S. at 520-21, we shall briefly address these issues.
        First, Mr. Herrera makes no assertion that the board imposed a five-year deferral
that was not reasonably related to some legitimate penological purpose. See Templeman

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       B. Evidentiary Hearing

       Mr. Herrera alleges that the district court engaged in erroneous weighing of

disputed facts when it determined that the five-year deferral posed no

constitutional problems, and that he is entitled to an evidentiary hearing on this

issue. For the reasons asserted above, the deferred parole consideration poses no

constitutional problems, which obviates Mr. Herrera’s claim for an evidentiary

hearing. See Morales, 513 U.S. at 511; Bias, 1996 WL 270964, at *2.



       C. Appointment of Counsel

       Mr. Herrera filed a motion for the appointment of counsel that the

magistrate judge denied, and that the district court did not expressly address. Mr.

Herrera claims the complexity of this case warrants appointment of counsel.

There is no factual complexity here, and Mr. Herrera “has demonstrated an ability

to pursue relevant issues with appropriate pleadings and citations to authorities.”



v. Gunter, 16 F.3d 367, 371 (10th Cir. 1994). Second, there is no indication there was an
abuse of discretion when the board denied and deferred Mr. Herrera’s parole
consideration in 1993. See Rec. doc. 21, at 3 (Magis.’s Findings and Recommendations,
dated July 31, 1996) (noting that Mr. Herrera’s parole consideration deferral was “only
made after a hearing and a vote by the majority of the Parole Board members, and thus
the decisions have no indicia of arbitrariness”). Finally, we agree with the district court
that “in light of th[e] record, and without pleading any other facts, [Mr. Herrera] has
clearly failed to show that the Parole Board’s adverse decision was retaliatory.” Rec. doc.
25, at 7 (Dist. Ct. Order, filed Feb. 12, 1997). There is no abuse of discretion here.

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Rec. doc. 11, at 2 (Magis.’s Order, dated June 19, 1996) (citing Rux v.

Boergermann, 57 F.3d 978 (10th Cir. 1995)). The magistrate judge did not err

when he refused to appoint counsel. See Blankenship v. Meachum, 840 F.2d 741,

743 (10th Cir. 1988) (per curiam).



                                II. CONCLUSION



      We agree with the district court that Mr. Herrera has not “made a

substantial showing of the denial of a constitutional right” required under 28

U.S.C. § 2253(c)(2). We affirm the district court’s denial of a certificate of

appealability and dismiss the appeal. We also dismiss Mr. Herrera’s § 1983

claims. Although we dismiss his § 1983 claims for failure to state a claim under

28 U.S.C. § 1915(e)(2)(B)(ii), rather than as frivolous under § 1915(e)(2)(B)(i),

we agree with the district court that the dismissal counts for purposes of tallying

“prior occasions” under 28 U.S.C. § 1915(g). The mandate shall issue forthwith.

                                              Entered for the Court,

                                              Robert H. Henry
                                              Circuit Judge




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