Darrell Ellis v. Greg Province

FILED
United States Court of Appeals
Tenth Circuit
March 26, 2008
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
DARRELL ELLIS,
Petitioner - Appellant, No. 07-7092
v. (E.D. Oklahoma)
GREG PROVINCE, Warden, (D.C. No. 6:04-CV-00369-RAW-KEW)
Respondent - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.
Darrell Ellis, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) so that he may appeal the denial by the United States District
Court for the Eastern District of Oklahoma of his application for relief under
28 U.S.C. § 2241. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA for state
prisoner to appeal); Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005) (state
prisoner must obtain COA to appeal denial of application filed under § 2241).
We deny his request for a COA and dismiss his appeal because he fails to allege a
violation of federal law.
BACKGROUND
Mr. Ellis was convicted of first-degree murder in Oklahoma state court and
sentenced to life imprisonment in 1980. On August 23, 2004, he filed his
application under § 2241. The district court denied it on the merits, and also
denied his request for a COA. On appeal he argues the following: (1) that he is
entitled to immediate release under the Eighth and Fourteenth Amendments
because, as he interprets Oklahoma law, he has discharged his sentence; (2) that a
1988 revision of Okla. Stat. tit. 57, § 138, which changed the manner in which
prisoners earn good-time credits, cannot be applied to him without violating the
Constitution’s Ex Post Facto Clause; and (3) that Oklahoma administrative policy
violates the Ex Post Facto Clause because it establishes more limited “incremental
benefits” for prisoners than those to which he was entitled under the prior policy.
DISCUSSION
To obtain a COA, Mr. Ellis must make “a substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2). Such a showing is made if a
prisoner can “demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel,
529 U.S. 473, 484 (2000).
Mr. Ellis’s first claim is that he has a “vested liberty interest in the
Legislature’s unambiguous definition of a life sentence,” and that under
Oklahoma law he is unlawfully imprisoned because he has already finished
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serving his sentence. Aplt. Br. 8 (emphasis omitted). We do not disagree with
the claim that his constitutional rights would be violated by keeping him
incarcerated after he had served his term. But the length of that term is a matter
of Oklahoma, not federal, law. And Oklahoma’s highest court on such matters
has rejected his interpretation. See Ellis v. Beck, No. HC-2004-732, slip op. at 2
(Okla. Crim. App. July 30, 2004). This court must defer to the interpretation of
state law by a state’s highest court. See Estelle v. McGuire, 502 U.S. 62, 67
(1991) (“federal habeas corpus relief does not lie for errors of state law” (internal
quotation marks omitted)). Accordingly, Mr. Ellis has alleged no error that we
could cure.
Mr. Ellis’s next two claims invoke the Ex Post Facto Clause of the
Constitution. “To show a violation of the Ex Post Facto Clause, a prisoner must
demonstrate that he has been subjected to a penal or criminal law that is
retrospective, and disadvantageous to the offender because it imposes greater
punishment.” Reed v. McKune, 298 F.3d 946, 954 (10th Cir. 2002) (brackets and
internal quotation marks omitted). A law does not violate the Clause unless it
either “alter[s] the definition of criminal conduct or increase[s] the punishment
for the crime.” Id. (internal quotation marks omitted and brackets revised).
Regarding his second claim, Mr. Ellis argues that under the 1988 revision
of Okla. Stat. tit. 57, § 138, inmates classified at level 1 or level 2 receive fewer
good-time credits than they would have under the 1980 version of the statute,
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which apparently was in effect at the time of his offense. But the state district
court found that he is receiving credits under the law in effect in 1980. Because
Mr. Ellis has failed to provide clear and convincing evidence that this finding was
erroneous, see 28 U.S.C. § 2254(e)(1), we must accept that finding, which
establishes that his claim lacks merit.
Turning to Mr. Ellis’s third claim, he asserts that he has been denied
“incidental benefits.” But his brief provides no description of what those
“benefits” are. We therefore cannot evaluate whether the alleged denial of
benefits implicates the Ex Post Facto Clause. Accordingly, we must hold that this
claim, too, is devoid of merit.
CONCLUSION
We DENY Mr. Ellis’s request for a COA and AFFIRM the district court’s
dismissal of his application for habeas corpus. We deny the Request for Judicial
Notice as unnecessary.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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