Ronald D. Kelly, Ii, Petitioner-appellant, v. Ed Evans, Warden; Attorney General of the State Ofoklahoma, Respondent-appellees, 28 F.3d 113 (10th Cir. 1994)

Before TACHA, BRORBY and EBEL, JJ.

ORDER AND JUDGMENT¹ 

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The cause is therefore ordered submitted without oral argument.

Mr. Kelly, a state inmate, appeals the denial of his petition for habeas corpus. Finding no error in the district court's judgment, we affirm.

Mr. Kelly was sentenced to thirty-four years for second degree murder. Currently, Oklahoma courts have struggled to resolve two successive statutory methods of awarding inmates earned time to reduce their sentences. One for inmates sentenced prior to 1988 and one for inmates sentenced thereafter. The State of Oklahoma, in Mr. Kelly's case, computes credits under each system and awards Mr. Kelly the most advantageous on a monthly basis. Mr. Kelly believes this to be unconstitutional and contends he is entitled to the total of these earned time credits. In short Mr. Kelly asserts the Constitution guarantees to him all credits under both systems.

The magistrate judge appointed counsel for Mr. Kelly and conducted a hearing concerning the award of credits. The magistrate judge then entered a fourteen page report and recommendation concluding Mr. Kelly's constitutional rights were not denied and recommending the dismissal of his petition for habeas corpus. The district judge agreed and ordered the dismissal.

Mr. Kelly appeals this decision. Mr. Kelly offers us no authority which would show or even tend to show the magistrate judge's report and recommendation was legally or factually flawed.

Mr. Kelly is awarded credits pursuant to the statute most advantageous for him. He receives a monthly computer printout showing the number of credits received. It is clear he has received all credits to which he is entitled and he is correctly apprised of the method of computing the credits. It is also apparent that current Oklahoma Department of Corrections procedures for awarding credits do not violate the Constitution.

The judgment of the district court is AFFIRMED for substantially the same reasons set forth in the fourteen-page report and recommendation of the magistrate judge dated September 20, 1993, a copy thereof being attached and made a part hereof.