UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JIMMY GENE WELCH,

Petitioner - Appellant,

vs.

RON CHAMPION, Warden,

Respondent - Appellee.

No. 99-7070

(	D.C. No. 98-CV-480)

(E.D. Okla.)

ORDER AND JUDGMENT*

Before ANDERSON, KELLY, and BRISCOE, Circuit Judges.**

Mr. Welch, an inmate appearing pro se, seeks to appeal from the district court's dismissal of his habeas petition, 28 U.S.C. § 2254. Although Mr. Welch did not exhaust his claims, the district court determined that requiring exhaustion would be futile and that the petition should be denied pursuant to 28 U.S.C. § 2254(b)(2) because it raised state law issues.

Mr. Welch claims that his sentence, imposed prior to passage of the Oklahoma Truth in Sentencing Act, should be adjusted downward. He claims that the Act has disadvantaged him because he would receive a lighter sentence under the sentencing matrix established by the Act. He claims an equal protection violation because he is punished differently from those convicted after passage of the Act.

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991). Whether the Act should be applied retroactively is a question of state law, not one of Constitutional dimension. "'[T]here is absolutely no constitutional authority for the proposition that the perpetrator of a crime can claim the benefit of a later enacted statute which lessens the culpability level of that crime after it was committed.'" Nestell v. Klinger, No. 98-6148, 1998 WL 544361 at *1 (10th Cir. Aug. 27, 1998) (unpublished) (quoting United States v. Haines, 855 F.2d 199, 200 (5th Cir. 1988).

We DENY Mr. Welch's application for a certificate of appealability and

dismiss the appeal.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge