Dial v. Hannigan

145 F.3d 1345 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Ronnie DIAL, Petitioner--Appellant, v. Robert D. HANNIGAN and Attorney General of Kansas, Respondents--Appellees. No. 97-3235. United States Court of Appeals, Tenth Circuit. May 6, 1998. Before PORFILIO, KELLY, and HENRY, Circuit Judges.** ORDER AND JUDGMENT* PAUL J. KELLY, Jr., Circuit Judge. [1] Mr. Dial seeks to appeal from the denial of his habeas corpus petition, 28 U.S.C. § 2254. In his petition, Mr. Dial argues that the Kansas Sentencing Guidelines Act, as amended effective July 1, 1993, see Kan. Stat. Ann. §§ 21-4701 to 21-4728 (1995), and its retroactivity provision, see id. § 21-4724, violate equal protection. Mr. Dial's view essentially is that all convictions should be eligible for retroactive application of the Guidelines and that any equal protection challenge should be evaluated on the basis of strict scrutiny. [2] Both the Kansas state courts and the district court have rejected similar arguments. See Chiles v. State, 254 Kan. 888, 869 P.2d 707, 714-18 (Kan.), cert. denied, 513 U.S. 850, 115 S.Ct. 149, 130 L.Ed.2d 88 (1994); Jones v. Bruce, 921 F.Supp. 708, 710-12 (D.Kan.1996). We are likewise unpersuaded. Mr. Dial has not shown that his circumstances are similar to those in State v. Fierro, 257 Kan. 639, 895 P.2d 186, 189-91 (Kan.1995), thus, Fierro does not support his position. [3] We DENY Mr. Dial's Application for a Certificate of Appealability and DISMISS the appeal. All pending motions are denied. Entered for the Court Footnotes [-s-s] ** 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 The cause is therefore ordered submitted without oral argument [-s] * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. This 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