Lane v. Nye

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 19, 1998
• Docket: 97-3248
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 19 1998 TENTH CIRCUIT __________________________ PATRICK FISHER Clerk

DERRICK DENNIS LANE,

Petitioner-Appellant,

v. No. 97-3248 (D. Kan.) HAROLD NYE and CARLA J. (D.Ct. No. 96-3557-DES) STOVALL, Attorney General for the State of Kansas,

Respondents-Appellees. __________________________

ORDER AND JUDGMENT * __________________________

Before SEYMOUR, BRORBY, and BRISCOE, Circuit Judges. __________________________

After examining the brief(s) 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. 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* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel.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. Mr. Derrick Lane appeals the district court’s denial of his petition for writ

of habeas corpus under 28 U.S.C. § 2254. He also requests a certificate of

appealability, a prerequisite to our jurisdiction over his appeal. 28 U.S.C.

§ 2253(c). The district court denied Mr. Lane's certificate of appealability. Mr.

Lane claims the retroactivity provision of the Kansas Sentencing Guidelines Act,

Kan. Stat. Ann. § 21-4724(b)(1) (1995), violates his due process and equal

protection rights under Fourteenth Amendment of the United States Constitution.

Section 21-4724(b)(1) limits retroactive application of the Guidelines to certain

classes of offenders, thereby excluding Mr. Lane. Kan. Stat. Ann. § 21-

4724(b)(1). Mr. Lane argues all offenders sentenced prior to July 1, 1993, the

effective date of the Guidelines Act, should be afforded retroactive application of

the Guidelines.

Both the Kansas Supreme Court and the federal district court have addressed

and rejected similar arguments. See Chiles v. State, 869 P.2d 707 (Kan.), cert

denied, 513 U.S. 850 (1994); Jones v. Bruce, 921 F. Supp. 708 (D. Kan. 1996).

Mr. Lane's case is indistinguishable. Therefore, for the reasons set forth in those

cases, we conclude Mr. Lane has not suffered a constitutional violation.

Consequently, we DENY Mr. Lane's application for a certificate of appealability

because he has failed to make a "substantial showing of the denial of a

-2- constitutional right," 28 U.S.C. § 2253(c)(2), and DISMISS his appeal.

Entered by the Court:

WADE BRORBY United States Circuit Judge

-3-