Duncan v. Champion ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 8 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
ARLEY LEE DUNCAN,
Petitioner-Appellant,
v. No. 99-6029
(D.C. No. CIV-98-1226)
RON CHAMPION; and OKLAHOMA (W.D. Okla.)
DEPARTMENT OF CORRECTIONS,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and LUCERO, Circuit Judges.
This case is before the court on Arley Lee Duncan’s application for a
certificate of appealability (“COA”). See 28 U.S.C. § 2253(c)(1)(A) (providing
that denial of a federal habeas petition is not appealable unless petitioner first
obtains a certificate of appealability). Because Duncan has failed to make “a
substantial showing of the denial of a constitutional right” in accordance with the
*
After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). 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Order and Judgment is not binding precedent, except under the doctrines of law of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.
requirements of 18 U.S.C. § 2253(c)(2), this court finds that he is not entitled to a
COA.
In 1983, Duncan was charged with and pleaded guilty to first degree felony
murder in the District Court of Oklahoma County, Oklahoma, case number CRF-
83-3116. Duncan was sentenced to life imprisonment with the possibility of
parole. In accordance with Oklahoma law in effect at that time, Duncan’s life
sentence was of indeterminate length.
The Oklahoma Truth in Sentencing Act (the “Act”) was signed into law in
1997 and modified various aspects of Oklahoma law pertaining to sentencing and
parole. See 1997 Okla. Sess. Laws ch. 133. As it pertains to the present case, the
Act provides that persons sentenced to life imprisonment with the possibility of
parole receive a determinate sentence of eighteen to sixty years. See Okla. Stat.
tit. 21, § 14. The Oklahoma Court of Criminal Appeals has interpreted this
amendment to be purely prospective in its effect. See Castillo v. Oklahoma, 954
P.2d 145 (Okla. Crim. App. 1998); Nestell v. Oklahoma, 954 P.2d 143 (Okla.
Crim. App. 1998).
Duncan filed a federal habeas petition pursuant to 28 U.S.C. § 2254 on
August 17, 1998 in United States District Court for the Western District of
Oklahoma. Duncan claimed that the failure to modify his indeterminate life
sentence pursuant to the sentencing provisions of the Act violates his equal
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protection and due process rights under the Constitution. Duncan argued that the
retrospective nature of the Act’s parole eligibility requirements compels
modification of his sentence. See Okla. Stat. tit. 57, § 332.7. Duncan reiterates
these arguments on appeal to this court.
The district court, adopting the report and recommendation of the
magistrate judge, concluded that Duncan is not entitled to receive a determinate
sentence under the Act and found no violation of Duncan’s equal protection or
due process rights. After reviewing the relevant case law, the file and the
arguments made by Duncan, both below and on appeal, we conclude that he has
not made a substantial showing of the denial of a constitutional right for
substantially the same reasons Duncan’s claims were rejected by the federal
district court in its Order of November 25, 1998. Accordingly, we DENY COA
on all issues.
The mandate shall issue forthwith.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
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