UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

CAINEY ROBERTS, JR.,

Petitioner-Appellant,

v.

CHARLES RAY, Warden; THE ATTORNEY GENERAL OF THE STATE OF OKLAHOMA,

Respondents-Appellees.

No. 00-7117

(E.D. Okla.)

(D.Ct. No. 97-CV-500-B)

ORDER AND JUDGMENT*

Before SEYMOUR, Circuit Judge, BRORBY, Senior Circuit Judge, and LUCERO, Circuit Judge.

Mr. Cainey Roberts, Jr. appeals the district court's denial of his federal petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. This court has jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. Mr. Roberts claims he is entitled to habeas relief because the Oklahoma Court of Criminal Appeals violated ex post facto principles when it applied Parker v. State1 to his direct appeal. Mr. Roberts argues Parker was an unexpected and unforeseeable new rule of law and the application of Parker in his direct appeal2 denied him due process of law.

Mr. Roberts acknowledges his argument hinges on whether this court determines Parker was unforeseeable. This court recently held the result in Parker was foreseeable. Sallahdin v. Gibson, 275 F.3d 1211, 1228 (10th Cir. 2002).3 Mr. Roberts' arguments are substantially the same as those we considered and rejected in Sallahdin. See id. at 1227-28. Therefore, the district court's denial of the petition for a writ of habeas corpus is AFFIRMED.

Entered by the Court:

WADE BRORBY

United States Circuit Judge