                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              FEB 3 1999
                                TENTH CIRCUIT
                           __________________________                    PATRICK FISHER
                                                                                  Clerk

 JOHN GENE MOORE,

          Petitioner-Appellant,

 v.                                                        No. 98-6266
                                                          (W.D. Okla.)
 KEN KLINGER,                                        (D.Ct. No. 97-CV-2028)

          Respondent-Appellee.
                        ____________________________

                            ORDER AND JUDGMENT *


Before BRORBY, EBEL, and LUCERO, 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.



      Appellant John Gene Moore, an Oklahoma state prisoner appearing pro se,


      *
          This order and judgment is not binding precedent except under the doctrines of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.
seeks a certificate of appealability to appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. We grant Mr. Moore’s request to proceed in forma

pauperis, deny his request for a certificate of appealability, and dismiss his

appeal.



       Mr. Moore pled guilty to four counts involving false imprisonment,

concealing stolen property, and cultivation of marijuana. He received a sentence

of twelve years imprisonment on one charge and ten years imprisonment on three

other charges, to run concurrently. Mr. Moore did not file a direct appeal, but

subsequently filed two applications for post-conviction relief in state court. 1 In

his most recent application, he sought modification of his sentence, claiming

violation of his Equal Protection rights under the Fourteenth Amendment based

on passage of the Oklahoma Truth in Sentencing Act. See 1997 Okla. Sess. Laws,

Ch. 133, §§ 612 and 613. The state district court and Oklahoma Court of

Criminal Appeals denied him post-conviction relief.



       Mr. Moore then filed a petition for a writ of habeas corpus under § 2254 in

the federal district court. The thrust of his petition was his demand that his


       1
         The first post-conviction appeal did not involve any of the issues addressed in
this appeal, and has no bearing on the outcome of this appeal.


                                            -2-
sentence be reduced through retroactive application of the Oklahoma Truth in

Sentencing Act, passed in April 1997 and effective July 1, 1998. In addition, Mr.

Moore claimed the Act must be construed favorably toward him because of its

ambiguity and the liberty interest and due process rights it creates. While Mr.

Moore demanded he receive the benefits bestowed by the Act, he also complained

(1) the Act constituted an unconstitutional ex post facto law as it made him

ineligibile for various early release programs, including pre-parole, house arrest,

electronic monitoring and specialized supervision; (2) he did not make his guilty

plea knowingly, intelligently or voluntarily because he detrimentally relied on the

existence of those early release programs; and (3) the Act violates his equal

protection rights because he is treated differently from those prisoners who

receive shorter sentences under the Act.



      A magistrate judge recommended Mr. Moore’s petition be dismissed for

failure to exhaust available state remedies or, in the alternative, be denied on the

merits. In addressing the merits of the petition, the magistrate judge concluded

Mr. Moore could not qualify for a sentence reduction because the Oklahoma Truth

in Sentencing Act does not apply to prisoners who committed crimes before July




                                           -3-
1, 1998; 2 and because his claim centers on questions of state law while habeas

relief requires implication of a federal constitutional question. In addition, the

magistrate judge determined the Act did not create an unconstitutional ex post

facto law because the Act did not affect the programs at issue, or alternatively,

Mr. Moore’s anticipated participation in such programs, under pre-Act statutes,

was speculative. For the same reasons, the magistrate judge rejected Mr. Moore’s

claim his guilty plea was involuntary and unknowing. Lastly, the magistrate

judge concluded (1) no due process violation occurred as the Act did not create a

liberty interest requiring reduction of his sentence, and (2) no equal protection

violation occurred because Mr. Moore’s treatment is similar to those sentenced at

the same time as him.



      After an independent review of the record, the relevant law, and Mr.

Moore’s objection thereto, the district court adopted the magistrate judge’s

recommendation, exercised its discretion to decide the petition on the merits, and

denied the petition. The district court also denied Mr. Moore’s request for a

certificate of appealability and his request to proceed in forma pauperis.



      2
         The magistrate judge relies on Cotner v. Hargett, 133 F.3d 932, 1998 WL 4334
(10th Cir. 1998) (unpublished), in which we concluded the Truth in Sentencing Act does
not apply to those sentenced prior to the Act’s effective date of July 1, 1998.


                                          -4-
      On appeal, Mr. Moore, in a very lengthy brief, 3 raises essentially the same

arguments presented to and addressed by the district court. Before addressing the

merits of Mr. Moore’s petition and his request for a certificate of appealability,

we must consider the issue of whether we should dismiss his petition on grounds

he failed to exhaust available state remedies. See Hoxsie v. Kerby, 108 F.3d

1239, 1242 (10th Cir.), cert denied, 118 S. Ct. 126 (1997). Generally, a federal

court presented with a habeas petition containing both exhausted and unexhausted

claims should dismiss the entire petition without prejudice. Hoxsie, 108 F.3d at

1242. An exception to this rule applies when the court determines, as we do here,

that the “‘interests of comity and federalism will be better served by addressing

the merits forthwith.’” Id. (quoting Granberry v. Greer, 481 U.S. 129, 134

(1987) and applying it to 28 U.S.C. § 2554(b)(2)). Thus, we proceed to Mr.

Moore’s request for a certificate of appealability.



      In order to proceed on appeal, Mr. Moore must make a substantial showing

of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). See also United

States v. Simmonds, 111 F.3d 737, 746 (10th Cir. 1997). We have thoroughly

reviewed Mr. Moore’s application for a certificate of appealability, his brief, the


      3
        Mr. Moore’s forty-eight-page appeal brief exceeds the thirty-page requirement
under 10th Cir. R. 32(7)(A).


                                          -5-
magistrate judge’s recommendation, the district court’s order, and the record on

appeal, and we agree with the district court that Mr. Moore fails to make the

required showing. Our decision is in accord with our dismissal of similar habeas

cases. 4 Accordingly, we adopt the reasoning set forth in the district court’s Order

filed June 19, 1998, and the magistrate judge’s Findings and Recommendation,

filed May 29, 1998, and attach them hereto.



       We grant Mr. Moore’s request to proceed in forma pauperis, deny his

request for a certificate of appealability, and DISMISS the appeal.




                                           Entered by the Court:

                                           WADE BRORBY
                                           United States Circuit Judge




       4
         We agree with the magistrate judge and district court in finding Mr. Moore’s ex
post facto argument fails to make a substantial showing of the denial of a constitutional
right. In this case, the district court and magistrate judge resolved this issue on the merits
and found Mr. Moore failed to show his entitlement to, or projected participation in, these
programs under pre-Act statutes.

                                             -6-
Attachments not available electronically.
