Lane v. Nye

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This order and judgment is not binding precedent except under the doctrines of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
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constitutional right," 28 U.S.C. § 2253(c)(2), and DISMISS his appeal.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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