UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
MONTY RAY STILL,
Petitioner-Appellant,
v. No. 98-6227
KEN KLINGER; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,
Respondents-Appellees.
ORDER Filed August 4, 1999
Before ANDERSON and KELLY , Circuit Judges, and BROWN , * Senior District Judge.
Respondents-Appellees have filed a petition for rehearing from this court’s
order of July 2, 1999.
The materials submitted by respondents have been reviewed by the
members of the hearing panel, who conclude that the original disposition was
incorrect. Accordingly, the petition is granted. The order and judgment of July 2,
1999, is withdrawn and the attached order and judgment is substituted.
* Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation. Entered for the Court, PATRICK FISHER, Clerk of Court
By: Keith Nelson Deputy Clerk
2 F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 4 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
v. No. 98-6227 (D.C. No. 98-CV-135) KEN KLINGER; ATTORNEY (W.D. Okla.) GENERAL OF THE STATE OF OKLAHOMA,
ORDER AND JUDGMENT *
Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. ** Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation. 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.
Petitioner Monty Ray Still appeals from an order of the district court
denying his petition for habeas relief filed pursuant to 28 U.S.C. § 2254 . We
affirm. 1
In 1994, Still was sentenced to fifteen-year concurrent sentences under the
Oklahoma statute providing for an enhanced sentence after former conviction of a
felony following his plea of guilty to charges of unlawful distribution of
marijuana and a controlled dangerous substance. He took no direct appeal.
In 1997, Oklahoma enacted the Truth in Sentencing Act which changed the
sentencing matrix for various crimes and modified parole and early release
guidelines. Still then filed for post-conviction relief alleging that his due process
rights and liberty interests had been violated when he was denied the opportunity
for early parole under programs which existed prior to passage of the new Act.
Still also contended the Act violated the ex post facto clause of the United States
Constitution. Still concluded he was entitled to a modification of his sentence
under the new Act and parole under the provisions of the prior acts.
The Oklahoma Court of Criminal Appeals denied relief and Still
1 This court previously granted Still a certificate of appealability and ordered briefing from respondent as to his ex post facto issue .
2 commenced this § 2254 action in federal district court. The federal court denied
relief on the basis that Still had not raised any constitutional claims upon which
he could obtain relief. On appeal, Still claims that the Act violates his ex post
facto rights by eliminating the early release programs under which he had been
approved for release.
On appeal from the district court’s denial of a habeas petition, we review
the district court’s factual findings for clear error and its legal conclusions de
novo. See Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 19 99). However,
we may grant habeas relief only if the state court’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or . . . resulted in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),
(2). 2
The district court correctly ruled that Still stated no viable claim as far as
he requests modification of his sentence. Oklahoma prisoners are not entitled to
resentencing under the new Act. See Nestell v. Klinger , No. 98-6148, 1998 WL
544361, at **1 (10th Cir. Aug. 27, 1998); see, e.g., Castillo v. State , 954 P.2d
2 Still filed this petition January 27, 1998. Therefore, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") apply.
3 145, 147 (Okla. Crim. App. 1998) (sentencing matrices of new Act do not become
effective until July 1, 1998 and do not inflict greater punishment, thus, no ex post
facto violation could occur); Nestell v. State , 954 P.2d 143, 144-45 (Okla. Crim.
App. 1998) (same).
Still also contends that he had been approved for parole under the repealed
acts and has since been denied release based on provisions on the new Act which
have been applied retroactively to him. He also contends he relied on the
availability of the prior early release statutes when deciding to plead guilty.
Retroactive application of an act that inflicts “a greater punishment, than
the law annexed to the crime, when committed,” is prohibited under the Ex Post
Facto Clause. Lynce v. Mathis , 519 U.S. 433, 441 (1997) (quotation omitted).
Such an application implicates “the central concerns of the Ex Post Facto Clause:
the lack of fair notice and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was consummated.” Id.
(quotation omitted).
The Oklahoma legislature enacted the early release programs at issue here
in 1993. Still committed the crimes to which he pled guilty in 1992. The
elimination in 1997 of the early release programs did not increase the punishment
prescribed at the time Still committed his criminal acts and, therefore, did not
offend the Ex Post Facto Clause. See Weaver v. Graham , 450 U.S. 24, 30-31
4 (1981); see also Woods v. Klinger , No. 98-6185, 1999 WL 79398 (10th Cir.
Feb. 19, 1999), petition for cert. filed, No. 98-9900 (U.S. June 18, 1999) . A
decrease in potential benefits after incarceration does not amount to an increase in
the punishment prescribed at the time the act was committed.
Accordingly, the judgment of the United States District Court for the
Western District of Oklahoma is AFFIRMED.
Entered for the Court
Wesley E. Brown Senior District Judge
5 F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 2 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
v. No. 98-6227 (D.C. No.
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UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
MONTY RAY STILL,
Petitioner-Appellant,
v. No. 98-6227
KEN KLINGER; ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,
Respondents-Appellees.
ORDER Filed August 4, 1999
Before ANDERSON and KELLY , Circuit Judges, and BROWN , * Senior District Judge.
Respondents-Appellees have filed a petition for rehearing from this court’s
order of July 2, 1999.
The materials submitted by respondents have been reviewed by the
members of the hearing panel, who conclude that the original disposition was
incorrect. Accordingly, the petition is granted. The order and judgment of July 2,
1999, is withdrawn and the attached order and judgment is substituted.
* Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation. Entered for the Court, PATRICK FISHER, Clerk of Court
By: Keith Nelson Deputy Clerk
2 F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS AUG 4 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
v. No. 98-6227 (D.C. No. 98-CV-135) KEN KLINGER; ATTORNEY (W.D. Okla.) GENERAL OF THE STATE OF OKLAHOMA,
ORDER AND JUDGMENT *
Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
* 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. ** Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation. 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.
Petitioner Monty Ray Still appeals from an order of the district court
denying his petition for habeas relief filed pursuant to 28 U.S.C. § 2254 . We
affirm. 1
In 1994, Still was sentenced to fifteen-year concurrent sentences under the
Oklahoma statute providing for an enhanced sentence after former conviction of a
felony following his plea of guilty to charges of unlawful distribution of
marijuana and a controlled dangerous substance. He took no direct appeal.
In 1997, Oklahoma enacted the Truth in Sentencing Act which changed the
sentencing matrix for various crimes and modified parole and early release
guidelines. Still then filed for post-conviction relief alleging that his due process
rights and liberty interests had been violated when he was denied the opportunity
for early parole under programs which existed prior to passage of the new Act.
Still also contended the Act violated the ex post facto clause of the United States
Constitution. Still concluded he was entitled to a modification of his sentence
under the new Act and parole under the provisions of the prior acts.
The Oklahoma Court of Criminal Appeals denied relief and Still
1 This court previously granted Still a certificate of appealability and ordered briefing from respondent as to his ex post facto issue .
2 commenced this § 2254 action in federal district court. The federal court denied
relief on the basis that Still had not raised any constitutional claims upon which
he could obtain relief. On appeal, Still claims that the Act violates his ex post
facto rights by eliminating the early release programs under which he had been
approved for release.
On appeal from the district court’s denial of a habeas petition, we review
the district court’s factual findings for clear error and its legal conclusions de
novo. See Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 19 99). However,
we may grant habeas relief only if the state court’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or . . . resulted in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),
(2). 2
The district court correctly ruled that Still stated no viable claim as far as
he requests modification of his sentence. Oklahoma prisoners are not entitled to
resentencing under the new Act. See Nestell v. Klinger , No. 98-6148, 1998 WL
544361, at **1 (10th Cir. Aug. 27, 1998); see, e.g., Castillo v. State , 954 P.2d
2 Still filed this petition January 27, 1998. Therefore, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") apply.
3 145, 147 (Okla. Crim. App. 1998) (sentencing matrices of new Act do not become
effective until July 1, 1998 and do not inflict greater punishment, thus, no ex post
facto violation could occur); Nestell v. State , 954 P.2d 143, 144-45 (Okla. Crim.
App. 1998) (same).
Still also contends that he had been approved for parole under the repealed
acts and has since been denied release based on provisions on the new Act which
have been applied retroactively to him. He also contends he relied on the
availability of the prior early release statutes when deciding to plead guilty.
Retroactive application of an act that inflicts “a greater punishment, than
the law annexed to the crime, when committed,” is prohibited under the Ex Post
Facto Clause. Lynce v. Mathis , 519 U.S. 433, 441 (1997) (quotation omitted).
Such an application implicates “the central concerns of the Ex Post Facto Clause:
the lack of fair notice and governmental restraint when the legislature increases
punishment beyond what was prescribed when the crime was consummated.” Id.
(quotation omitted).
The Oklahoma legislature enacted the early release programs at issue here
in 1993. Still committed the crimes to which he pled guilty in 1992. The
elimination in 1997 of the early release programs did not increase the punishment
prescribed at the time Still committed his criminal acts and, therefore, did not
offend the Ex Post Facto Clause. See Weaver v. Graham , 450 U.S. 24, 30-31
4 (1981); see also Woods v. Klinger , No. 98-6185, 1999 WL 79398 (10th Cir.
Feb. 19, 1999), petition for cert. filed, No. 98-9900 (U.S. June 18, 1999) . A
decrease in potential benefits after incarceration does not amount to an increase in
the punishment prescribed at the time the act was committed.
Accordingly, the judgment of the United States District Court for the
Western District of Oklahoma is AFFIRMED.
Entered for the Court
Wesley E. Brown Senior District Judge
5 F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 2 1999 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk
v. No. 98-6227 (D.C. No. 98-CV-135) KEN KLINGER; ATTORNEY (W.D. Okla.) GENERAL OF THE STATE OF OKLAHOMA,
Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
* 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. ** Honorable Wesley E. Brown, Senior District Judge, United States District Court for the District of Kansas, sitting by designation. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
Petitioner Monty Ray Still appeals from an order of the district court
denying his petition for habeas relief filed pursuant to 28 U.S.C. § 2254 . We
affirm in part and reverse in part and remand. 1
In 1994, Still was sentenced to fifteen-year concurrent sentences under the
Oklahoma statute providing for an enhanced sentence after former conviction of a
felony following his plea of guilty to charges of unlawful distribution of
marijuana and a controlled dangerous substance. He took no direct appeal.
In 1997, Oklahoma enacted the Truth in Sentencing Act which changed the
sentencing matrix for various crimes and modified parole and early release
guidelines. Still then filed for post-conviction relief alleging that his due process
rights and liberty interests had been violated when he was denied the opportunity
for early parole under programs which existed prior to passage of the new Act.
Still also contended the Act violated the ex post facto clause of the United States
Constitution. Still concluded he was entitled to a modification of his sentence
under the new Act and parole under the provisions of the prior acts.
1 This court previously granted Still a certificate of appealability and ordered briefing from respondent as to his one issue .
-2- The Oklahoma Court of Criminal Appeals denied relief and Still
commenced this § 2254 action in federal district court. The federal court denied
relief on the basis that Still had not raised any constitutional claims upon which
he could obtain relief. On appeal, Still claims that the Act violates his ex post
facto rights by eliminating the early release programs under which he had been
On appeal from the district court’s denial of a habeas petition, we review
the district court’s factual findings for clear error and its legal conclusions de
novo. See Rogers v. Gibson , 173 F.3d 1278, 1282 (10th Cir. 19 99). However,
we may grant habeas relief only if the state court’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or . . . resulted in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1),
The district court correctly ruled that Still stated no viable claim as far as
he requests modification of his sentence. Oklahoma prisoners are not entitled to
resentencing under the new Act. See Nestell v. Klinger , No. 98-6148, 1998 WL
2 Still filed this petition January 27, 1998. Therefore, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") apply.
-3- 544361, at **1 (10th Cir. Aug. 27, 1998); see, e.g., Castillo v. State , 954 P.2d
145, 147 (Okla. Crim. App. 1998) (sentencing matrices of new Act do not become
effective until July 1, 1998 and do not inflict greater punishment, thus, no ex post
facto violation could occur); Nestell v. State , 954 P.2d 143, 144-45 (Okla. Crim.
However, Still also contends that he had been approved for parole under the
repealed acts and has since been denied release based on provisions on the new
Act which have been applied retroactively to him. He also contends he relied on
the availability of the prior early release statutes when deciding to plead guilty.
We have previously held that petitioners situated as Still have stated claims
that may constitute a violation of the ex post facto clause. See McMeekan v.
Klinger , No. 98-6247, 1998 WL 852551, at **1 (10th Cir. Dec. 10, 1998) ; Blue v.
Klinger , No. 98-6159, 1998 WL 738341, at **2 (10th Cir. Oct. 22, 1998); cf.
Moore v. Klinger, No. 98-6266, 1999 WL 50828, at **2, n.4 (10th Cir. Feb. 3,
1999) (affirming that petitioner had failed to state a viable claim as to his ex post
facto argument because he had “failed to show his entitlement to, or projected
participation in” the pre-release programs under the repealed statutes).
Thus, if Still can establish he was entitled to pre-parole or early release
under the law as it existed prior to passage of the Truth in Sentencing Act, “the
Act’s elimination of those programs would in fact constitute a violation of the Ex
-4- Post Facto Clause.” Blue, 1998 WL 738341, at **2 (citing Lynce v. Mathis , 519
U.S. 433, 445 (1997); Weaver v. Graham , 450 U.S. 24, 35-36 (1981)); see also
Warden v. Marrero , 417 U.S. 653, 663 (1974) (“[R]epealer of parole eligibility
previously available to imprisoned offenders would clearly present [a] serious
question under the ex post facto clause . . . of whether it imposed a greater or
more severe punishment than was prescribed by law at the time of the . . .
offense.” (quotation omitted)).
Accordingly, the judgment of the United States District Court for the
Western District of Oklahoma is AFFIRMED in part and REVERSED in part.
This case is REMANDED to the district court for further proceedings consistent
with this order and judgment.
-5-