767 P.2d 1261 (1989)
115 Idaho 486
Patricia Louise VERNON, Claimant-Appellant,
v.
OMARK INDUSTRIES, Employer, and
State Insurance Fund, Surety, Defendant-Respondent.
No. 17312.
Supreme Court of Idaho.
January 16, 1989.
Church & Brown, Lewiston, for claimant-appellant. Charles A. Brown argued.
*1262 M. Karl Shurtliff, Boise, for defendant-respondent.
BAKES, Justice.
The Industrial Commission denied Vernon's claim for worker's compensation benefits, ruling that she had not proved that her injury arose out of and in the course of her employment. On appeal this Court vacated and remanded the case back to the commission, instructing it to "make more detailed factual findings and conclusions of law to support its ultimate holding." Vernon v. Omark Industries, 113 Idaho 358, 361, 744 P.2d 86, 89 (1987) (Vernon I). On remand, the commission made new findings of fact and conclusions of law and again concluded that claimant failed to sustain her burden of proving that she suffered an accident as defined in I.C. § 72-102(14)(b).[1] Claimant appeals. We affirm.

I
The new findings of fact and conclusions of law which the commission made can be summarized as follows. Claimant Vernon's application for hearing stated the date of injury as "6-13-83 to 6-23-83 during work hours." In June of 1983, claimant was 40 years old and had worked at Omark Industries (Omark) for approximately nine years. The last seven years had been spent packaging primers. She worked four 10-hour days per week, and her work included lifting trays of primers, weighing 28 to 56 pounds apiece.
Claimant testified on direct examination that she began to experience pain on June 13, 1983, while she was at work. On cross examination, however, she conceded (and the commission found) that all she remembers is that her low back began to hurt sometime around the middle of June, 1983.
Claimant continued to work through June 23, though she experienced increasing low back pain. On June 24, her day off, claimant consulted Dr. Skinner, a chiropractor whom she had previously seen for low back pain. Claimant subsequently saw Dr. Skinner eight more times, but never identified her pain as work related. Claimant also consulted Dr. Johnson, a general practitioner, on July 8, 21, and 28. During this period she did not report any work related injury to her employer. Rather, claimant told her supervisor that she was seeing Dr. Johnson for arthritis in her back.
Claimant's back pain did not improve. On July 21, 1983, she went to the office of Dr. Colburn, an orthopedic surgeon in Lewiston, Idaho. Claimant was there examined by Betty Imthurn, a nurse practitioner. According to the history recorded by Imthurn, (1) claimant complained of continuous pain in her right low back, radiating into the right thigh, calf, and occasionally into the foot; (2) sometimes she experienced sharp pain in the low back; (3) claimant first noticed her symptoms about five weeks earlier (mid-June) and they were unrelated to any particular activity or incident; and (4) claimant had experienced low back pain intermittently for the last 6 years, but denied any previous leg symptoms. Imthurn advised claimant to cease work; in compliance claimant stayed in bed most of the following week.
On July 28 claimant returned. It was then Imthurn's impression that claimant had a herniated lumbar disc. Claimant was told to check with Dr. Colburn in two weeks, but claimant desired more immediate treatment so on July 29, 1983, she saw Dr. Adams, an orthopedic surgeon in Spokane, Washington. According to Dr. Adams' history, claimant denied previously *1263 feeling pain in her back and legs, but reported that this particular injury was work related, that it occurred on June 15, 1983, and that the pain began in her back, then extended into the right leg. A myelogram and CAT scan were performed on August 8, disclosing a herniated disc. Claimant underwent surgery on August 23, 1983, and ultimately was released to return to work again on January 23, 1984. When asked to state the cause of claimant's injury, Dr. Adams testified:
"[B]asically, it would be an overuse syndrome. Principally, it doesn't appear that there's one particular episode that caused it, at least in my history. But the type of injury is consistent with the type of work that she has done."
Claimant reported her injury to Omark on August 4, 1983. In that report claimant did not state a date of injury, but stated the date of diagnosis as June 24, 1983. It is Omark's policy to report any injury, no matter how minor, promptly after it occurs. Claimant was aware of the policy and had reported previous injuries in a prompt manner. Claimant testified, however, that she did not report this particular injury earlier because she was afraid she might be disciplined for excessive absence from work. Claimant claims she had received a previous warning for excessive absences. The commission found, however, based on the testimony of claimant's supervisor, that claimant received no warning concerning absences until after she returned to work in January of 1984.
Claimant had a prior history of back trouble. In 1978 she pinched a nerve as she was lifting her baby. She received chiropractic treatment. In 1979 claimant suffered a back injury at work when she lifted a case of literature. She was subsequently treated by a general practitioner. On a third occasion, claimant fell down some stairs and hurt her tail bone. Claimant also had a series of back treatments by Dr. Skinner between November 26 and December 15, 1982. As stated in claimant's deposition, the treatment was for back pain "close to the same area" where surgery was ultimately performed, but the pain's cause was not described in Dr. Skinner's records. Claimant also had appointments with Dr. Skinner on March 4 and May 5, 1983, but cancelled both appointments.
Based on this evidence, the commission was not persuaded that claimant injured her back at work in mid-June as claimed. Most significantly, the commission noted, claimant related no mishap or event which produced her low back pain. After reviewing the definition of "accident" contained in I.C. § 72-102(14)(b), the commission concluded that "Claimant has failed to sustain her burden of proving that she suffered an accident, that is, an unexpected, undesigned and unlooked for mishap or untoward event connected with her employment which caused her injury." Accordingly, claimant's claim was denied and her application for hearing was dismissed. Claimant appeals. We affirm the commission's decision.

II
The first issue before the Court is whether, construing the record most favorably to the party which prevailed below, here the defendants/respondents, Johnson v. Bennett Lumber Co., 115 Idaho 241, 766 P.2d 711 (1988), there is any substantial competent evidence to support the commission's factual findings. Idaho Const., Art. 5, § 9; I.C. § 72-732(1); Blackwell v. Omark Industries, 114 Idaho 10, 752 P.2d 612 (1988). As the record here demonstrates, there is ample substantial competent evidence upon which the commission could have based its findings.
The burden of proof in an industrial accident case is on the claimant.
"A claimant in a worker's compensation case has the burden of proving that he is entitled to benefits. The claimant must prove not only that he was injured, but also that his injury was the result of an *1264 accident arising out of and in the course of his employment. His proof must establish a probable not merely a possible connection between cause and effect to support his contention that he suffered an accident." Neufeld v. Browning Ferris Industries, 109 Idaho 899, 902, 712 P.2d 600, 603 (1985) (emphasis added).
Further, in order to be entitled to benefits, claimant must prove that she suffered an "accident," i.e., "an unexpected, undesigned, and unlooked for mishap, or untoward event, connected with the industry in which it occurs, and which can be reasonably located as to time when and place where it occurred, causing an injury." I.C. § 72-102(14)(b). Here, however, claimant made no such showing. Claimant has not testified to any "unexpected, undesigned, and unlooked for mishap, or untoward event" in her work. Rather, she conceded, "All I remember is I just started hurting around the middle of the month [June, 1983]." Further, in her deposition claimant testified as follows:
"Q. [By respondent's attorney] There's nothing else that you could add from your point of view that would further demonstrate that this incident did occur in the work place, that it was ...
"A. Other than the heavy lifting, it's the continual heavy lifting.
"Q. Do you believe that's what caused it yourself?
"A. Yes.
"Q. That it was just  it wasn't an incident, it was just a continuing.
"A. Continuing lifting.
"Q. Continuing lifting. You believe that that's what caused it?
"A. I believe that, yes.
"Q. Rather than just one sharp turn.
"A. Uh  huh."[2]
Claimant attempted to establish that she suffered an "accident" by introducing the testimony of Dr. Adams. However, Dr. Adams' testimony did not establish an "unlooked for mishap, or untoward event." Instead, he stated, "Principally, it doesn't appear that there's one particular episode that caused it, at least in my history."
Other evidence in the record also contradicts, rather than supports, claimant's assertion that she suffered a compensable "accident." First, when claimant saw chiropractor Skinner, she never identified her pain as work related. Second, during the period she was seeing Dr. Johnson, claimant did not report any work related injury to her employer  indicating instead that she was seeing Dr. Johnson for arthritis in her back. Third, according to the history recorded by Nurse Imthurn in Dr. Colburn's office, the symptoms claimant first noticed in mid-June were unrelated to any particular activity or incident; further, for the last six years claimant had experienced intermittent low back pain. Fourth, in her injury report to Omark, claimant did not state a date of injury and, in fact, did not make her report until six weeks after the alleged "accident," even though claimant was aware of Omark's policy requiring prompt reporting of injuries. And fifth, the record contains evidence that claimant's problem may have been ongoing, not the result of an "unlooked for mishap, or untoward event." On various prior occasions claimant had suffered back injuries, and between November 26 and December 15, 1982, chiropractor Skinner was treating claimant for back pain "close to the same area" where surgery was ultimately performed. Further appointments with Dr. Skinner were scheduled for March 4, and May 5, 1983, but were later cancelled by claimant.
Viewing the record in a light most favorable to the respondents prevailing below, *1265 there is more than ample evidence to support the Industrial Commission's conclusion that "Claimant has failed to sustain her burden of proving that she suffered an accident, that is, an unexpected, undesigned and unlooked for mishap or untoward event connected with her employment which caused her injury."
The commission's decision is supported by our decision in Hazen v. General Store, 111 Idaho 972, 729 P.2d 1035 (1986). In Hazen this Court affirmed the Industrial Commission's denial of compensation because claimant Hazen's injury was not the result of an "accident." Hazen worked in a convenience store, and her regular duties included lifting cases of beer and pop. Her testimony indicated that in mid-May of 1983 she began to notice that she was tired, ached all over, and had a sharp pain in her right leg. The pain continued for several weeks and during that time she had discussions with her supervisor about it, although she never attributed the pain to her work or any accident occurring during her work. Hazen ultimately saw a chiropractor. The chiropractor's health insurance claim form stated that Hazen's problems were not work related. The chiropractor then referred Hazen to a neurologist who performed a CAT scan and myelogram. Hazen was advised by the neurologist that she had a herniated disc. Up to that time, claimant Hazen had never asserted that her medical problem was work related, or that it resulted from an accident which she had incurred during her employment. In her amended application for hearing, though, Hazen alleged that her accident and injury occurred between May 13, and May 23, 1983, claiming it resulted from lifting heavy crates and cases of beer and pop. At the hearing, Dr. Bowman, an orthopedic surgeon, testified that "there does not appear to be any specific incident which caused this lady to have a herniated disc which is documented by the record." 111 Idaho at 973, 729 P.2d at 1036.
The Industrial Commission accepted the testimony of Dr. Bowman and found that claimant's herniated disc was not the result of an accident, but had come on gradually over a long period of time. Dr. Bowman's testimony was corroborated in part by claimant's own testimony and the record in that case, which suggested that throughout the period from May of 1983, until after her surgery, claimant Hazen at no time attributed her problem to her employment, or an accident which occurred during her employment. Upon such a record, this Court in Hazen concluded:
"Accordingly, construing the record most favorably to the respondent in this matter, as we must, there is more than sufficient substantial, competent evidence to sustain the finding of the Industrial Commission `that the claimant's herniated disc was not the result of an accident... .'" 111 Idaho at 974, 729 P.2d at 1038.
The Hazen decision is controlling, and supports the commission's decision.

III
The only other issue which we must consider is whether the following statement, found in the specially concurring opinion of Justice Huntley in Vernon I, and concurred in by Bistline, J., and Bengtson, J. pro tem., was a ruling as a matter of law that the claimant should prevail on remand to the commission:
"I would rule that on the basis of this record claimant has amply demonstrated that her back injury arose from her heavy lifting at work and that the accident has been reasonably located as to the time and place of its occurrence." 113 Idaho at 363, 744 P.2d at 91.
We hold that this statement was not a ruling that the claimant should prevail as a matter of law on remand to the commission.
The majority opinion in Vernon I, written by Chief Justice Donaldson and concurred in by three other justices, and in which the pro tem. justice concurred in the result, "vacate[d] the commission's decision *1266 and remand[ed] back to the commission with the instruction that it make more detailed factual findings and conclusions of law to support its ultimate holding." Id. at 360-361, 744 P.2d at 88-89. Accordingly, the law of the case was not that claimant should prevail on remand; rather, it was that the case was remanded to the commission to make more detailed findings and conclusions.
The specially concurring opinion of Justice Huntley is not in conflict. Justice Huntley states, "I agree that this case should be remanded to the Industrial Commission for more appropriate and specific findings of fact and conclusions of law." Id. at 362, 744 P.2d at 90. Hence, the decision of this Court in Vernon I, as reflected in both the majority opinion and in Justice Huntley's special concurrence, was only that the Industrial Commission should reconsider the case and make more detailed findings of fact and conclusions of law. In Vernon I we did not reverse the commission and remand with directions "for the entry of an appropriate award to claimant," as we did in Wynn v. J.R. Simplot Co., 105 Idaho 102, 105, 666 P.2d 629, 632 (1983). That would have been the appropriate form of order had we concluded that claimant Vernon was entitled to an award as a matter of law based upon the evidence in the record.
In sum, we hold that the record contains substantial competent evidence to sustain the commission's findings, conclusions and order in this case. We also hold that the Industrial Commission correctly carried out our directive on remand from Vernon I. The decision of the Industrial Commission is affirmed. Costs to respondents. No attorney fees on appeal.
SHEPARD, C.J., and JOHNSON, J., concur.
BISTLINE, Justice, dissenting.
The very first page in Vernon's appellate brief needs to be reproduced, as it has apparently escaped the attention of Justice Bakes in the drafting of his proposed majority opinion:
This is the second appeal to be heard by this Court in this same matter. In the first appeal, Claimant appealed from an Industrial Commission order which held that there was not substantial and competent evidence to support the Claimant's position that the injury she suffered was work related.
This Court held for the Claimant and found in a 5-0 decision that concluded:
Here the Commission simply recited the conflicting evidence presented without resolving the factual conflicts. In short, the Commission's factual findings and conclusions of law are incomplete and need to be expanded before we can properly exercise our appellate review function. Accordingly, we vacate the Commission's decision and remand back to the Commission with the instruction that it make more detailed factual findings and conclusions of law to support its ultimate holding.
1987 Opinion No. 88, p. 6.
But, in addition to the above, three of the Justices agreed that:
If anything, there is even less reason today to accord any deference to the notion that a Claimant must specify with particularity a single event or happening which constitutes the `accident' or results in the claimed injury. This state's legislative amendment to Idaho Section 72-201 (resulting in the present Idaho Code 72-102) (14)(b) requires that this Court accord more, and certainly not less, consideration to Claimant's attempts to reasonably locate their injuries than this Court did seventy years ago.
I would rule that on the basis of this record Claimant has amply demonstrated that her back injury arose from her heavy lifting at work and that the accident has been reasonably located as to the time and place of its occurrence.

*1267 Justice Huntley's Opinion: 1987 Opinion No. 88, p. 12. (emphasis added)
In essence, despite these findings, the Industrial Commission has chosen to disagree with this Court as to the definition of the `accident' as that term has been defined by statute and also as that term has been defined by case law issued by the Idaho Supreme Court.
Appellant's Brief, p. 1-2 (emphasis in original). Page 10 of that brief provides this:
The revised findings of fact as found by the Industrial Commission do much to bolster Claimant's argument herein. This case has now narrowed down to the single issue of an `accident.' The Industrial Commission specifically found that:
Based upon the evidence presented, the Commission is not persuaded that the Claimant injured her back in mid-June 1983. Most significantly, the Claimant relates no specific mishap or event which produced her low back pain.
Again, the Industrial Commission apparently wants a falling, or a tumbling, or a tripping to take place before it is going to recognize an `accident.' And once the Claimant falls or trips, he or she must yell out in pain in order to immediately notify the employer of this mishap.
The Industrial Commission is unwilling to recognize that low-back injury at work could easily occur and should be recognized as such when a woman who is 43 years of age, weighs approximately 132 pounds, and lifts up to 9 tons of primers a day. In lifting up to 9 tons or primers a day, the Claimant was stooping, bending, twisting, and manually handling each tray of primers as she removed them from their storage binds, lifted, twisted, and placed them upside down on the work bench in front of her.
The evidence at trial was clear and unrefuted that the Claimant was involved in no other extracurricular activity that could have caused the damage to her back and that she felt the initial pain while she was at work performing her duties, and that pain worsened as she still attempted her work duties.
The Idaho Supreme Court has stated previously that:
As this Court has repeatedly stated, `If a Claimant be engaged in his ordinary usual work and the strain of such labor becomes sufficient to overcome the resistance of Claimant's body and causes an injury, that injury is compensable.'

Wynn v. J.R. Simplot Co., 105 Idaho 102 at 104, 666 P.2d 629 [at 631] (1983).
The facts of the Wynn case are blatantly similar to those of the present case. In both cases, the workers performed strenuous labor. In both cases, the Claimants suffered a back injury which required surgery. In Wynn a ruptured disk, and in the present case, a herniated disk. Both Claimants presented uncontroverted testimony from their attending physicians that the injuries were work related. In Wynn the Court overruled the Industrial Commission decision which denied benefits.
Appellant's Brief, p. 10-11 (emphasis supplied).[3]
Mr. Brown's opening remarks at oral argument informed us that he thought he had won when he read the 1987 opinions. When we decided Vernon v. Omark I, it was believed that his client should have won but didn't, based on being unaware that Judge Bengston had joined Justice Huntley's opinion. Later, when this case resurfaced, on reading our three reported opinions in 113 Idaho, it was inescapable that she had won.
As the excerpt from the brief illustrates, Justice Donaldson had three concurrences *1268 plus one vote concurring in the result, but there was also the special concurrence by Justice Huntley, with Justice Bistline and Justice Pro Tem Bengston concurring. Justice Donaldson's opinion vacated the Commission's decision and remanded the cause to the Commission with the instruction that it make more detailed factual findings and conclusions of law to support its ultimate holding, which was to deny any benefits. Apparently, in retrospect, that italicized phrase was not a good choice of words, as it certainly was capable of being read as stating that the ultimate holding was not wrong but the findings and conclusions as written insufficiently supported it. The Commission very well could have so concluded. At the same time it also may not have realized the judicial effect of there being two opinions which commanded the votes of a majority of the Court.
When Justice Donaldson submitted his opinion which reversed the denial of benefits, the initial concurrences indicated approval of reversing. But there was no intention that new findings and conclusions be drawn solely as to support a new decision denying benefits. The ultimate conclusion would depend on the findings and conclusions to which the Commission arrived. That, of course, concerned only the Donaldson proffered opinion. Thereafter, in the manner that such things take place, Justice Huntley and Justice Bistline also wrote to express somewhat differing views, or in addition to the views of Justice Donaldson.
My special concurrence was directed at amplifying on the Donaldson comments as an intended aid to the Commission in redetermining whether the claimant "sustained her burden of proving her injury resulted from an accident," per Donaldson, J., 113 Idaho at 360, 744 P.2d at 88. My opinion was based on the precedent and the teachings of the Wynn case:
Most working people can be expected to want to remain on the job, not because they enjoy the heavy lifting and concomitant back pain, but because the pay check is a necessity. They are not kennel hounds, but motivated workers.
Repetitive trauma sets the stage for an injury to occur, as per Wynn, and, in the absence of any evidence, any other activity to which the surety or the employer can point, and which is attributable as being the culprit  it is only reasonable and fair to conclude that the ultimate injury was job-related. The legislature has only required that it be reasonably located as to time and place. It would be improper for the Commission or this Court to require more of a heavy-lifting claimant than a best recollection [as to when the incident likely occurred].
Vernon v. Omark Industries, 113 Idaho 358, 361-362, 744 P.2d 86, 89 (1987). My separate opinion was in the mill at the same time that Justice Huntley was independently writing his separate opinion, as witnessed by the conclusion in mine: "In the final analysis in these cases, the answer is to be found, as Justice Huntley suggests, by eliminating other possible causes for which there is no supporting evidence." Justice Huntley, after reading my opinion added footnote 2 to his opinion.
His opinion provided guidance to the Commission in further proceedings. When it garnered two votes in addition to his own vote, it became a directive. He wrote:
However, I would also like to highlight what I believe to be the major problem source in cases of this kind. As stated in the majority opinion, I.C. § 72-102(14)(b) requires that before a claimant recover for an accident or injury occurring in the work place or on the job, such accident or injury must be `reasonably located as to time when and place where it occurred.' Simply put, that statute does not require a plaintiff to pinpoint an exact time when the injury occurred, but only a reasonable estimate of such. Indeed, in unique cases such as this, where a claimant has, in all likelihood, suffered an injury as a result of cumulative and repeated stress or trauma, it would simply be unfair and unreasonable to require the impossible of *1269 a claimant who is not able to pinpoint one exact date upon which such an injury or accident occurred.
Prior to the 1971 comprehensive amendment of the workmen's compensation law, I.C. § 72-201 (the predecessor of the present I.C. § 72-102(14)(b)) read: `Accident' as used in this law, means an unexpected, undesigned, and unlooked for mishap, or untoward event, happening suddenly and connected with the industry in which it occurs and which can be definitely located as to time when and place where it occurred, causing an injury as defined in this law." (Emphasis supplied). By deleting the words `happening suddenly,' and supplanting the words `definitely located' by the words `reasonably located,' it is evident that this state's legislature meant to require of the claimant only such proof as to time when and place where any injury occurred as was reasonably possible.
Also of some importance is the fact that this Court has long recognized that justice and fairness require that, in cumulative injury cases, the claimant is not required to pinpoint an exact date of an injury or accident.
In Reinoehl v. Hamacher Pole and Lumber Co., 51 Idaho 359, 6 P.2d 860 (1931), this Court ruled that a claimant who had died of Rocky Mountain Spotted Fever resulting from tick bites received over a period of two weeks while on the job had a compensable `accident,' even though the cause of the claimant's death could not be attributed to one particular tick bite. Reinoehl was, itself, merely one in a line of cases so holding.
In McNeil v. Panhandle Lumber Co., 34 Idaho 773, 203 P. 1068 (1921), this Court addressed a case strikingly similar to the one at hand. In McNeil, repeated heavy lifting on the job gradually caused the detachment of claimant's retina, loss of the right eye, and, in that particular case, total blindness. This Court refused to deny McNeil his right to recover for failure to fix with particularity the time when his ultimate injury occurred, stating:
Undoubtedly in most cases of accidental injury the claimant would be able to fix not only the day but the hour, if necessary, when the accident occurred. But in a case of this kind in which the injury may not appear for some time after it has been actually inflicted by the accident, it would be manifestly unfair and a denial of justice to refuse compensation because the claimant could not identify the very day of the accident, though he could fix the time with reasonable certainty. To so hold would be to misconstrue the main provisions of this (workmen's compensation) law, whose purpose is declared by the legislature to be to provide sure relief for injured workmen and their families and their dependents. (Citation omitted). The workmen's compensation law, like other laws of this state, is to be liberally construed with a view to effect its object and promote justice. 34 Idaho at 786, 203 P. at 1081.
* * * * * *
I WOULD RULE THAT ON THE BASIS OF THIS RECORD CLAIMANT HAS AMPLY DEMONSTRATED THAT HER BACK INJURY AROSE FROM HER HEAVY LIFTING AT WORK AND THAT THE ACCIDENT HAS BEEN REASONABLY LOCATED AS TO THE TIME AND PLACE OF ITS OCCURRENCE.
Vernon v. Omark, supra, 113 Idaho at 362-363, 744 P.2d at 90-91, per Huntley, J. (emphasis added).
Justice Huntley was advised that I concurred in his opinion, including that which he would hold.[4] Unbeknownst to me until much later in preparing for this second appeal was that Justice Pro Tem Bengston *1270 had also joined the Huntley opinion. One plus one plus one equals three. Three of us therefore "would hold" and thus did hold "that claimant had amply demonstrated that her back injury arose from her heavy lifting at work and that the accident has been reasonably located as to the time and place of occurrence."
Any time that there are three votes for a given holding in a given opinion that becomes on a five-man court, the law of the case.
The rule is well established and long adhered to in this state that where, upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both in the trial court and upon subsequent appeal... . Suitts v. First Security Bank of Idaho, 110 Idaho 15, 713 P.2d 1374 (1985) (quoting from Carlson v. Northern Pacific Rail Co., 86 Mont. 78, 281 P. 913, 914 (Mont. 1929).
Matter of Barker (Barker v. Fischbach & Moore, Inc.), 110 Idaho 871, 872, 719 P.2d 1131, 1132 (1986).
Barker, coincidentally, not only is a landmark case insofar as the doctrine of law of the case is concerned, but it also was a workers' compensation case and a case which came before the Supreme Court on appeal on two occasions.
The first appeal, Barker I, is found at 105 Idaho 108, 666 P.2d 635 (1983). (Another coincidence is that it is located side-by-side with Wynn v. J.R. Simplot Co., 105 Idaho 102, 666 P.2d 629 (1983).) Just as here Justice Donaldson authored Vernon I, he also authored Barker I, which would have been unanimous except for the dissent of Justice Bakes. The holding in Barker I was "that as a matter of law the Commission erred in the way it applied Spanbauer[5] to the facts of this case." In reversing and remanding the Court instructed the "Commission to determine if other evidence, besides the payment of travel expenses, exists to support a finding that [claimant] was within the course of employment at the time of the accident." Barker I, 105 Idaho at 111, 666 P.2d at 638. In Barker II, the second appeal, after stating the doctrine of the law of the case, the Court's per curiam opinion, set out hereinabove, went on to add in conclusion:
As we noted in Suitts, the doctrine of law of the case has long been the rule in this jurisdiction. See Palmer v. Dermitt, 102 Idaho 591, 595, 635 P.2d 955, 959 (1981); Creem v. Northwestern Mut. Fire Ass'n of Seattle, Wash., 58 Idaho 349, 352, 74 P.2d 702, 703 (1937); Unfried v. Libert, 23 Idaho 603, 606, 131 P. 660, 661 (1913); Hall v. Blackman, 9 Idaho 555, 75 P. 608 (1904). In fact, this Curt has often compared the doctrine of law of the case with the principle of res judicata, indicating that an appellate court is bound by the law of the case. See Idaho Dept. of Law Enforcement v. One 1955 Willys Jeep, 100 Idaho 150, 157, 595 P.2d 299, 306 (1979) (Bistline, J., dissenting); Creem v. Northwestern Mut. Fire Ass'n of Seattle, Wash., 58 Idaho 349, 358, 74 P.2d 702, 705 (1937) (Ailshie, J., dissenting in part); Hall v. Blackman, 9 Idaho 555, 559-560, 75 P. 608, 609 (1904).
The Industrial Commission correctly applied the law announced by this Court in Barker I to the facts of this case. Accordingly, the order of the Industrial Commission is affirmed; costs to respondent.
Barker II, 110 Idaho 871, 872-73, 719 P.2d 1131, 1132 (1986) (emphasis supplied). If memory serves me correctly, the Court's per curiam opinion in Barker II was authored by Justice Bakes.
That which Justice Donaldson first wrote, i.e., the cause remanded for redrawn findings and conclusions, is not inconsistent with what the other majority opinion of Justice Huntley holds. Three of *1271 us decided the issue which Justice Donaldson's opinion had earlier stated should be reconsidered by the Commission. Nothing was left for the Commission to attend to other than the preparation of a new set of findings and conclusions which would sustain this Court's ultimate conclusion,[6] purely a ministerial act.
At this point we should again vacate the decision of the Industrial Commission. The directions on remand should be that the Commission make the necessary determinations as to the extent of claimant's permanent impairment and then as to her permanent disability. Thereafter a proper monetary award should be computed and ordered.
HUNTLEY, J., concurs.
HUNTLEY, Justice, dissenting.
I fully concur in the dissent of Justice Bistline and would make three additional comments:
(1) The Bar and the Industrial Commission should note that the majority opinion of today does not at any point reverse, repeal, revise or modify the law of the three-justice majority of Vernon I on the issue of how the Commission is to construe the statutory requirement that the accident be reasonably located as to time and place.
(2) Today's majority opinion stands for only one proposition  Mrs. Vernon is not to be compensated because three justices and three commissioners misread what the words of Justice Donaldson's remand meant.
When I voted with him in his use of the following words, "... make more detailed factual findings and conclusions of law to support its ultimate holding," such was in the context, not of reentering the same ultimate holding, but rather we had pointed out that the Commissioner's "then holding" was not supported by its findings from the record. At no point did Justice Donaldson dictate what the "ultimate holding" should be and I must respectfully say that it is just plain wrong for this Court to approve the Commission's misunderstanding and misimplementation of its duty.
Totally ignored by Justice Bakes from Justice Donaldson's Vernon I is the following:
In the instant case, the commission did not explain the rule of law under which they were operating. They merely stated that the claimant did not meet her burden of proof.
We cannot ascertain whether the commission simply did not believe the testimony of the claimant's doctors or her own testimony, or placed a greater weight on the conflicting evidence, or believed the claimant's testimony, but applied a rule of law to reach its determination. It is not our function to guess the reasoning of the commission. We cannot determine that the commission acted properly, or improperly, in reaching its conclusion. Thus, we must vacate its decision and remand to clarify its rationale. With our restrained review of the commission's factual findings, it becomes essential that the conclusions of law not be shrouded in ambiguity.
(3) Thank you, Mrs. Vernon, for having provided an opportunity for clarification of the law via Vernon I  my apologies for the circumstances which have followed to deprive you of the compensation which you earned by your labor.
BISTLINE, Justice, concurring in the opinion of HUNTLEY, Justice.
It has become apparent that not even one of the three members constituting the majority *1272 commanded by Justice Bakes' opinion has any inclination to attempt dispelling the views which Justice Huntley has espoused in his dissenting opinion, and likewise with the views in mine.
This presents, then, a sad commentary on the supposed science of jurisprudence in Idaho. As I have pointed out on earlier occasions, when there is a dissenting opinion in other jurisdictions, including the Supreme Court of the United States, those in the majority  being in the position of making new law, or destroying old law  ordinarily are very conscientious in explaining away what is by the majority perceived to be the fallacy of the dissenting views.
Here, however, those in the majority make not the slightest response. Instead they have chosen to stonewall the dissenting opinions. This is not acceptable. The trial bar and the litigants are entitled to know by what logic those in the majority can undo the law of the case which was made in Vernon I. Where nothing has been forthcoming it becomes shamefully obvious that no one in today's majority possesses the fortitude to even attempt an explanation.
What the trial bar and the citizenry of Idaho see today is a clear example of the damage which can be wrought in the judicial system whenever three Supreme Court Justices indulge in a power struggle born of the proposition that three beats two. This case, though important to Mrs. Vernon, was not that important that three members of the Court should find it necessary to shatter the underpinnings of a doctrine of law that has not heretofore been questioned in the slightest. For just one example of this Court in action in better days, see State v. Monroe, 101 Idaho 251, 611 P.2d 1036 (1980) where the lead and larger portion of the majority opinion was written by one justice, with another justice writing on but one issue in the case. We never doubted that there were in Monroe two majority opinions. The only distinction between Monroe and Vernon II is that, because of clerical inadvertence, we were not made aware when the opinions issued that Justice Pro Tem Bengston had joined Justice Huntley's opinion. But he had, and the latter opinion was a second majority opinion. The distinction is one without a difference. As a matter of fact probably a goodly share of this Court's opinions come about in that manner. Ordinarily, where there is another opinion which also commands a majority, it is usually tendered to the author of the lead opinion (ordinarily determined by the luck of the draw) who willingly incorporates it into what he has written.
NOTES
[1]  "72-102. Definitions.  Words and terms used in the workmen's compensation law, unless the context otherwise requires, are defined in the subsections which follow.

... .
"(14) `Injury' and `accident.'
... .
"(b) `Accident' means an unexpected, undesigned, and unlooked for mishap, or untoward event, connected with the industry in which it occurs, and which can be reasonably located as to time when and place where it occurred, causing an injury."
[2]  This testimony given by claimant at her deposition was later reaffirmed by her at her hearing before the Industrial Commission. After respondent's counsel read the colloquy back to claimant, claimant testified:

"Q. If I were to ask you those same questions, would your answers be the same today?
"A. Yes."
[3]  Omark's brief sloughed off this issue, stating only that "The Appellant argues that the Commission failed to adhere to the directive of the Supreme Court as set out in the special concurrence of Justice Huntley." It goes without saying that capable counsel representing Omark and the State Insurance Fund is well aware that the special concurrence was that of Justice Huntley, joined by two other members of the Court. In turn, Justice Bakes sloughed off the issue by ignoring it.
[4]  "I would hold" is appropriate language to be used where at the time of writing the author does not know that he will gain two concurrences.
[5]  Spanbauer v. Peter Kiewit & Sons Co., 93 Idaho 509, 465 P.2d 633 (1970).
[6]  Justice Donaldson died in office shortly after our opinions issued. As his office was in charge of the release of opinions in this case, it is not known whether he had learned of Justice Pro Tem Bengston's concurrence in Justice Huntley's opinion. As stated, that news was not conveyed to me. Had it been during Justice Donaldson's lifetime, I would have suggested that he rewrite his opinion so as to avoid leaving any possibility of an ambiguity in further proceedings. Accepting things as they are, there is not any conflict in our two majority opinions. The second in point of time, Justice Huntley's, modified and superseded the first in just the one particular.


998 F.2d 721
62 USLW 2115
Jerrold S. FLEMMING, Petitioner-Appellant,v.OREGON BOARD OF PAROLE, Respondent-Appellee.
No. 92-35151.
United States Court of Appeals,Ninth Circuit.
Argued and Submitted March 2, 1993.Decided July 12, 1993.

Kathleen M. Correll, Asst. Federal Public Defender, Portland, OR, for petitioner-appellant.
Janet A. Metcalf, Asst. Atty. Gen., Salem, OR, for respondent-appellee.
Appeal from the United States District Court for the District of Oregon.
Before:  KILKENNY, TANG, and POOLE, Circuit Judges.
TANG, Circuit Judge:

1
Jerrold S. Flemming, an Oregon state prisoner, appeals the denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254.   Flemming contends that the district court erred in concluding that the Oregon Board of Parole ("Board") did not violate the Ex Post Facto Clause, U.S. Const. art.  I, § 10, cl. 1, when it applied a regulation retroactively in calculating Flemming's parole release date.   We agree and therefore reverse.

I.

2
In 1981, Flemming was convicted of multiple sex offenses under Oregon state law.   At the time of his crimes, a state parole regulation provided that the Board could reduce certain sentences, but that "reductions shall be limited to a maximum of 20% of the prison term under review."   Or.Admin.R. § 255-40-025(2) (Apr.1981).1  Ordinarily, the Board reviews sentences "after the prisoner has served five years of his prison term and every three years thereafter."   Id. § 255-40-005(1) (setting forth schedule for "periodic reviews");  see id. § 255-40-025(2)(a) ("[r]eductions shall customarily be considered at periodic reviews under rule 255-40-005").

3
The phrase "20% of the prison term under review," id. § 255-40-025(2), refers to twenty percent of the entire prison sentence, and not just to twenty percent of the time served as of the parole hearing.  Jeldness v. Board of Parole, 90 Or.App. 135, 751 P.2d 243, 243-44, modified on other grounds, 92 Or.App. 323, 759 P.2d 1102, review denied, 307 Or. 245, 767 P.2d 75 (1988).   This twenty percent ceiling on sentence reduction is apparently recalculated and applied anew each time the Board reviews a prisoner's sentence.   Thus, a prisoner who receives the maximum reduction at the time of his or her first review may nevertheless receive an additional reduction of up to 20% of the previously revised sentence if there should be another review.   See Williams v. Board of Parole, 107 Or.App. 515, 812 P.2d 443, 444-45 (1991), aff'd on reh'g, 112 Or.App. 108, 828 P.2d 465, review dismissed, 313 Or. 300, 832 P.2d 456 (1992).   Under the 1981 regulation, the Board can also reduce a sentence by more than twenty percent upon majority vote.   Or.Admin.R. § 255-40-025(2).

4
In 1988, the parole regulations were amended.   Section 255-40-025(2), which imposed the twenty percent cap, was replaced with the following provision:

5
If the prisoner displays an extended course of conduct indicating outstanding reformation, the Board may grant a reduction of up to seven months of the three year period under review....

Or.Admin.R. § 255-40-025(2) (June 1990).2

6
Also in 1988, the Board met to consider Flemming's first five years of incarceration, spanning the years 1981-86.   At that time, Flemming's sentence totaled 170 months.   The Board concluded that a 12-month reduction was warranted, regardless of which version of section 255-40-025 applied.

7
In 1989, the Board met again to consider Flemming's sentence.   At this time Flemming would have been eligible, under the prior version of section 255-40-025, for a reduction in sentence of up to 31.6 months (i.e., twenty percent of the then-existing 158-month sentence), or more if a majority of the Board so approved.   Under the new regulation, however, the maximum reduction was seven months, which is what the Board awarded.   In doing so, the Board made no reference to the prior version of section 255-40-025.   Instead, consistent with the amended version, the Board only considered the period of incarceration from 1986 to 1989 in deciding upon a further reduction.3  Based on this additional reduction in sentence, Flemming's parole release date was scheduled for February 27, 1993.4

8
In an unpublished disposition, the Oregon Court of Appeals affirmed the Board's 1989 decision;  the Oregon Supreme Court denied review.  Flem[m]ing v. Board of Parole, 102 Or.App. 691, 795 P.2d 122, review denied, 310 Or. 475, 799 P.2d 646 (1990).   Flemming then filed this federal habeas petition alleging that his "constitutional rights were violated by ex post facto application of amended Board of Parole rules."

9
In October 1991, the district court denied the petition on the ground that both versions of section 255-40-025 are discretionary in nature such that "[p]etitioner has no constitutionally cognizable liberty interest under either rule."   Flemming timely appeals the denial of his habeas petition.

II.
A.

10
We review de novo the denial of a state prisoner's petition for a writ of habeas corpus.  King v. Rowland, 977 F.2d 1354, 1357 (9th Cir.1992).   Whether application of a law violates ex post facto is also reviewed de novo.  United States v. Castro, 972 F.2d 1107, 1111 (9th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1350, 122 L.Ed.2d 731 (1993).

B.

11
The Ex Post Facto Clause prohibits, inter alia, laws which "make more burdensome the punishment for a crime, after its commission."  Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990).  "[T]o fall within the ex post facto prohibition, two critical elements must be present:  first, the law 'must be retrospective, that is, it must apply to events occurring before its enactment';  and second, 'it must disadvantage the offender affected by it.' "  Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d 351 (1987) (quoting Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)).

12
In Weaver, the Supreme Court considered whether a Florida statute reducing the amount of "good time" or "gain time" a state convict could automatically earn violated the Ex Post Facto Clause.  450 U.S. at 25, 101 S.Ct. at 962.   The Court concluded that application of the statute evoked the two critical elements indicating an ex post facto violation.

13
First, the Court noted that the statute used to calculate Weaver's "gain time" was passed after the date of his conviction.  Id. at 31, 101 S.Ct. at 965.  "Thus, the provision attaches legal consequences to a crime committed before the law took effect."  Id.  In concluding that the law satisfied the retroactivity prong, the Court considered it unnecessary to determine "whether the prospect of the gain time was in some technical sense part of the sentence."  Id. at 32, 101 S.Ct. at 966.   Instead, the Court found it sufficient that "eligibility for reduced imprisonment is a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed."  Id.

Second, the Weaver Court observed:

14
On its face, the [Florida] statute reduces the number of monthly gain-time credits available to an inmate who abides by prison rules and adequately performs his assigned tasks.   By definition, this reduction in gain-time accumulation lengthens the period that someone in petitioner's position must spend in prison.

15
Id. at 33, 101 S.Ct. at 967.   The Court thus considered Weaver to be sufficiently "disadvantaged by the reduced opportunity to shorten his time in prison simply through good conduct."  Id. at 33-34, 101 S.Ct. at 967.

16
Relying heavily on the Weaver decision, the Oregon Court of Appeals has concluded that retroactive application of the amended version of Or.Admin.R. § 255-40-025 violates ex post facto.   See Williams v. Board of Parole, 107 Or.App. 515, 812 P.2d 443, 446 (1991), aff'd on reh'g, 112 Or.App. 108, 828 P.2d 465, 466-68, review dismissed, 313 Or. 300, 832 P.2d 456 (1992).   We think this reliance is well-founded.

17
As in Weaver, the amended parole regulation here was enacted after Flemming's offenses, yet Oregon used this regulation to calculate Flemming's 1989 sentence reduction.   Although the State argues that the parole regulation is not annexed to Flemming's sentence, Weaver forecloses this argument.   As with the gain time credits in Weaver, the parole regulations here affect "eligibility for reduced imprisonment" such that they would be "a significant factor entering into both the defendant's decision to plea bargain and the judge's calculation of the sentence to be imposed."  450 U.S. at 32, 101 S.Ct. at 966.   Thus, application of amended section 255-40-025 gives rise to the Supreme Court's first "critical element" for an ex post facto violation.

18
Oregon's application of the revised parole regulation also evokes the second "critical element."   Whereas the rule in effect at the time of his offenses apparently would have provided Flemming with the opportunity for a sentence reduction of 31.6 months or more in 1989, the amended rule limited this opportunity to seven months.   As in Weaver, this "reduced opportunity to shorten his time in prison" demonstrates an ex post facto violation.

19
The State argues, and the district court agreed, that, because the Board at all times retained discretion in deciding the degree to which a sentence should be reduced, Flemming cannot show an ex post facto violation.   The Oregon Court of Appeals rejected this argument.  Williams, 112 Or.App. 108, 828 P.2d at 466-67.   The Williams court pointed out that, although the statute at issue in Weaver provided for "automatic" good-time credits once an inmate was found to have acted properly, the decision whether the inmate in Weaver qualified for the credits was still discretionary in the sense that it required a finding of good conduct.  Id. (citing Raske v. Martinez, 876 F.2d 1496 (11th Cir.), cert. denied, 493 U.S. 993, 110 S.Ct. 543, 107 L.Ed.2d 540 (1989));  see Weaver, 450 U.S. at 33, 101 S.Ct. at 966 (statute in question "reduces the number of monthly gain-time credits available to an inmate who abides by prison rules and adequately performs his assigned tasks");  see also id. at 26, 35, 101 S.Ct. at 962, 967.

20
Several passages in Weaver indicate that it is sufficient for ex post facto purposes if a statute significantly reduces an inmate's early release opportunities, regardless if such opportunities are contingent on the exercise of official discretion.   In particular, the Court noted that the ex post facto inquiry "looks to the challenged provision, and not to any special circumstances that may mitigate its effect on the particular individual."  Weaver, 450 U.S. at 33, 101 S.Ct. at 966.   Thus, it was sufficient that Weaver's "opportunity to shorten his time in prison," id. at 34, 101 S.Ct. at 967 (emphasis added), was reduced by the statute in question.

21
Similarly, in Miller v. Florida the Court rejected as irrelevant for ex post facto purposes Florida's argument that the petitioner "cannot show definitively that he would have gotten a lesser sentence," 482 U.S. at 432, 107 S.Ct. at 2452, under the state's sentencing guidelines in effect at the time of petitioner's offense.   In reaching its decision, the Miller Court relied on Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937).

22
In Lindsey, the Court found violative of the Ex Post Facto Clause Washington's application of a statute that required state courts to impose the maximum sentence prescribed by state law.   Under the law in effect at the time of the petitioners' offenses, Washington courts were to impose only an indeterminate sentence.   The Court held that, although "petitioners might have been sentenced to fifteen years under the old statute[,] ... [r]emoval of the possibility of a sentence of less than fifteen years, at the end of which petitioners would be freed from further confinement and the tutelage of a parole revocable at will, operates to their detriment" in a manner sufficient to violate ex post facto.  301 U.S. at 401, 57 S.Ct. at 799 (emphasis added).

23
Thus, the Court has summarized Lindsey as holding " 'that one is not barred from challenging a change in the penal code on ex post facto grounds simply because the sentence he received under the new law was not more onerous than that which he might have received under the old.' "  Miller, 482 U.S. at 432, 107 S.Ct. at 854 (quoting Dobbert v. Florida, 432 U.S. 282, 300, 97 S.Ct. 2290, 2302, 53 L.Ed.2d 344 (1977)).   This holding leaves open the door to claims of ex post facto violations arising from laws with discretionary elements.   Such elements may mute the constitutional problem, but "[s]ubtle ex post facto violations are no more permissible than overt ones."  Collins, 497 U.S. at 46, 110 S.Ct. at 2721.

24
In support of its argument that the Board's discretionary powers preclude an ex post facto violation, the State cites Smith v. United States Parole Comm'n, 875 F.2d 1361 (9th Cir.1988).   In Smith, the prisoner challenged the retroactive application of a federal parole regulation which prevented him from receiving credit against his federal sentence for time served in state custody.   Under regulations existing at the time of his federal parole violation, Smith had the "opportunity to serve most of the remainder of his federal sentence concurrently with his state sentence."  Id. at 1366 (emphasis added).

25
We held in Smith that application of the revised parole regulation did not violate ex post facto because it was not a "law" for purposes of the Ex Post Facto Clause.  Id. at 1367-68.   In reaching this conclusion, we stated that "the operative factor in assessing whether a directive constitutes a 'law' for ex post facto purposes is the discretion that the Parole Commission retains to modify that directive or to ignore it altogether as the circumstances may require."  Id. at 1367.   Applying this rule to the present case, the State argues that, because the Board was at all times free to refuse any reduction in prison sentences, the parole regulations here are not "laws" for ex post facto purposes.

26
Our decision in Smith is distinguishable from the present case for reasons outlined by the Supreme Court in Miller v. Florida.   In that case, the Court found "federal parole guidelines cases inapposite" in deciding whether retroactive application of state sentencing guidelines was ex post facto.  482 U.S. at 434, 107 S.Ct. at 2453.   The Court cited three reasons for not following the federal parole cases.   First, in contrast to cases which "have held that the federal parole guidelines are not 'laws' for purposes of the Ex Post Facto Clause," id., Florida regards its sentencing guidelines as having "the force and effect of law," id. at 435, 107 S.Ct. at 2453.   Second, the Miller Court indicated that the Florida sentencing guidelines do not "simply provide flexible 'guideposts' for use in the exercise of discretion:  instead, they create a high hurdle that must be cleared before discretion can be exercised."  Id.  Finally, "the revised [sentencing] guidelines directly and adversely affect the sentence petitioner receives."  Id.

27
Similarly, Oregon has indicated that its parole regulations have "the force and effect of law."  Miller, 482 U.S. at 435, 107 S.Ct. at 2453.   Specifically, Oregon courts have held that the state's parole regulations are laws for ex post facto purposes.  Williams, 812 P.2d at 445, 828 P.2d at 467;  Williams v. Board of Parole, 98 Or.App. 716, 780 P.2d 793, 794-95 (1989), review denied, 309 Or. 522, 789 P.2d 1387 (1990).   Based on these state court decisions and the Miller case, one federal court has already refused to apply federal parole guidelines decisions in cases involving Oregon parole regulations.   See Meyrovich v. Maass, 762 F.Supp. 1417, 1420 (D.Or.1991).5

28
Second, in amending section 255-40-025, Oregon added the requirement that the "parent institution" normally must recommend a reduction before the Board may reduce a prisoner's sentence.   Or.Admin.R. § 255-40-025(1) (June 1990).   The new regulation thus imposes a hurdle to be surmounted before the Board can exercise its discretion.   Under the 1981 regulation, it was only necessary for the Board to request a recommendation.   Id. § 255-40-025(3) (Apr.1981).   The amended regulation also limited the Board's ability to exceed the cap imposed on sentence reductions.   Compare id. § 255-40-025(2) (Apr.1981) (providing for reductions in excess of twenty percent) with id.  (June 1990) (omitting such provision).

29
Finally, the parole regulations at issue here "directly and adversely affect the sentence petitioner receives."  Miller, 482 U.S. at 435, 107 S.Ct. at 2454.   The effect of retroactively applying the amended provision is to reduce by at least two years the amount of time by which Flemming's sentence might be shortened.   Although Smith resists such comparisons (and instead looks only to the discretionary nature of the earlier of two parole regulations), the decision must be questioned on this ground.   The difference between the two regulations at issue in Smith is substantial.   As we noted, retroactive application of the revised regulation in that case "denied [Smith] the opportunity to serve most of the remainder of his federal sentence concurrently with his state sentence."  875 F.2d at 1366.   This is exactly the kind of difference Miller considers relevant in deciding whether a state provision is subject to ex post facto.6

30
We recognize that Smith distinguished Weaver v. Graham on the ground that,

31
the [Weaver] Court held that the retroactive repeal of a state statutory provision that automatically entitled prisoners to credit on their sentence for good behavior ran afoul of the ex post facto clause, notwithstanding that the successor statute provided for discretionary good time credit.   Again, we point out that the instant case, by contrast, involves the retroactive amendment of a discretionary policy, not a mandatory requirement.

32
875 F.2d at 1368 (citation omitted).   However, this passage overlooks the Supreme Court's teaching that discretionary aspects of a law do not preclude an ex post facto violation.   As discussed above, the Supreme Court has repeatedly stated that a criminal defendant need not show that she or he certainly would have received a less onerous punishment under a prior law to establish a constitutional violation.   Stated another way, "a law need not impair a 'vested right' to violate the ex post facto prohibition."  Weaver, 450 U.S. at 29, 101 S.Ct. at 964 (footnote omitted).

33
We thus reject Oregon's argument that the discretion with which the Board is charged precludes an ex post facto violation.   Following Miller v. Florida, we think our decision in Smith is best limited to the context of federal parole guidelines and their related regulations.7

34
The State's last argument is that, when other changes in state parole regulations are taken into account, Flemming was not in fact subject to a more onerous punishment than the one applicable when he committed his crimes.   Specifically, the State points to changes in the Board's ability to override multiple minimum sentences.   At some point, the Board could only override all or none of a prisoner's multiple minimum sentences.   Later, the Board could override individual minimum sentences.   Because the Board applied the later provision to override two of Flemming's three minimum sentences, the State argues that Flemming's opportunity for early release remained unchanged viewing the parole regulations as a whole, even if application of the amended section 255-40-025 was more onerous.

35
The State made a similar argument in Williams and the Oregon Court of Appeals rejected it.  828 P.2d at 467-68.   We do the same.   Although the Supreme Court has suggested that simultaneous changes to two or more substantive criminal provisions might offset each other for ex post facto purposes, see Miller, 482 U.S. at 431-32, 107 S.Ct. at 2451-52, the decision in Weaver indicates that the two provisions must be related.   In refusing to look beyond the provisions at issue in finding an ex post facto violation, the Weaver Court stated that "none of [the other] provisions for extra gain time compensates for the [automatic] reduction of gain time available solely for good conduct."  450 U.S. at 35, 101 S.Ct. at 967.   Instead, to compensate for any difference in the rules governing automatic gain time, the Court noted that inmates had to depend on the favorable exercise of discretion by authorities.  Id.  The Weaver Court thus refused to consider the effect of the statute at issue "in conjunction with other provisions enacted with it."  Id. at 34, 101 S.Ct. at 967.

36
Similarly, Oregon inmates must depend on a favorable decision to override multiple minimum sentences before such decisions can compensate for the reduced opportunity in sentence reductions.   As in Weaver, the onerous change in sentence reduction opportunities can only be compensated by a favorable exercise of discretion in overriding multiple minimum sentences.  Weaver teaches that this is not sufficient for one provision to offset the ex post facto effect of a change in another provision.

37
In sum, the Supreme Court decision in Weaver indicates that Flemming suffered an ex post facto violation when, in 1989, the Board considered him eligible for a maximum reduction in sentence of only seven months.

III.

38
The district court erred in concluding that retroactive application of Or.Admin.R. § 255-40-025 as amended does not violate the Ex Post Facto Clause.   We reverse and remand with instructions that an appropriately tailored writ issue unless, within a reasonable period to be determined by the district court, the State of Oregon recalculates Flemming's 1989 sentence reduction under the former version of section 255-40-025 and redetermines Flemming's parole release date accordingly.

39
REVERSED and REMANDED.

1
 The 1981 version of the regulation reads in relevant part:
Reductions in Prison Terms;  Effect of Minimum Terms;  Criteria;  Limitations
255-40-025 (1) An established prison term as defined in section 255-30-005(2) may be reset to an earlier time upon application for review to the chairperson of the Board and after concurrence of a voting majority of the Board ...:
(a) Reductions in prison terms will ordinarily be granted only in cases where a prisoner can show an extended course of conduct indicating outstanding reformation.   Cases will be determined on individual merits;  however, the usual criteria will include:
(A) A five-year period of good conduct;  and
(B) Demonstrable achievement in dealing with problems present at incarceration and associated with criminal conduct (e.g., psychological disorder, drug or alcohol dependency, lack of educational or vocational skills).
....
(2) Overall, reductions shall be limited to a maximum of 20% of the prison term under review unless a majority of the Board approves a further reduction:
(a) Reductions shall customarily be considered at periodic reviews under rule 255-40-005.
....
(3) A recommendation shall be requested from the institution superintendent on each application considered by the Board.

2
 The relevant portion of the regulation effective in 1989 reads:
Resetting the Parole Release Date to an Earlier Date
255-40-035 (1) An established prison term as defined in section 255-05-005(30), may be reduced under section (2) of this rule upon the prisoner's application for a hearing and the receipt of a recommendation from the parent institution....  The Board may at its discretion take administrative action to reset the parole release date to an earlier date.
(2) If the prisoner displays an extended course of conduct indicating outstanding reformation, the Board may grant a reduction of up to seven months of the three year period under review, under this section.   Cases will be reviewed based on the following criteria:
(a) The individual merits of each case, however, the criteria may include;
(b) The seriousness of the crime;
(c) The protection of the public;
(d) Demonstrable achievement in dealing with problems present at the time of incarceration and associated with criminal conduct (e.g., psychological disorder, drug or alcohol dependency, lack of educational or vocational skills);
(e) Documented cooperation with authorities while in custody where a substantial benefit is derived by the authorities;  and
(f) The absence of disciplinary actions resulting from violation of rules within the three year period.

3
 Because the Board's 1989 determination did not refer to the prior version of section 255-40-025, we conclude that the Board applied the amended version of the regulation.   In the absence of a reference to the prior version, we reject the State's argument that the 1989 reduction would have been the same under either parole regulation

4
 On November 10, 1992, the Board rescinded Flemming's 1993 release date.   The Board deferred Flemming's parole release date by 24 months, indicating a new release date of February 27, 1995.   In calculating this date, the Board relied in part on the rescinded release date.   Thus, if the 1989 Board determination violated ex post facto, Flemming's newly scheduled release date would have to be recalculated.   The case therefore remains in a posture whereby Flemming can obtain relief;  the controversy is not moot

5
 Although it is a federal question "[w]hether a retrospective state criminal statute ameliorates or worsens conditions imposed by its predecessor," Weaver, 450 U.S. at 33, 101 S.Ct. at 966, the decision in Miller clearly makes relevant the manner in which a state regards one of its laws challenged as ex post facto.   We thus decline the State's invitation to reassess the view of its own courts on the nature of Oregon's parole regulations

6
 Such differences, evident both here and in Smith, indicate that the regulations in question are not merely "procedural" such that the Ex Post Facto Clause would not apply.   See Dobbert, 432 U.S. at 293-94, 97 S.Ct. at 2998 (holding change in statute to be procedural and therefore exempt from ex post facto prohibition because "there was no change in the quantum of punishment attached to the crime")

7
 Two justices have indicated a need for the Supreme Court to consider cases such as Smith which hold that the federal parole guidelines and related regulations are not "laws" for ex post facto purposes.   See Bailey v. Noot, --- U.S. ----, ---- - ----, 112 S.Ct. 1516, 1516-17, 117 L.Ed.2d 652 (1992) (White, J., joined by Blackmun, J., dissenting from denial of certiorari)


     Case: 18-20609      Document: 00515319221         Page: 1    Date Filed: 02/21/2020

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                Fifth Circuit

                                                                                FILED
                                      No. 18-20609                       February 21, 2020
                                                                           Lyle W. Cayce
                                                                                Clerk

ARTIMUS LORENZO FEGANS,

                                                 Petitioner−Appellant,

versus

LORIE DAVIS, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,

                                                 Respondent−Appellee.

                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:17-CV-3834

Before SMITH, COSTA, and HO, Circuit Judges.
PER CURIAM: *

       Artimus Fegans, Texas prisoner #1550650, has moved for a certificate of

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 18-20609     Document: 00515319221     Page: 2   Date Filed: 02/21/2020

                                  No. 18-20609

appealability (“COA”) to appeal the disposition of his 28 U.S.C. § 2254 appli-
cation in which he attacked his conviction of aggravated robbery. The district
court dismissed the § 2254 application as time-barred.

      Fegans asserts that the application was timely. He contends that the
district court ignored state law and erroneously identified the date on which
his judgment was final for purposes of 28 U.S.C. § 2244(d)(1)(A).         Fegans
contends that Texas state law provides that direct review is over when the
state appeals court issues the mandate and, if that date was used to determine
when the judgment was final, his § 2254 application was timely. He further
contends that, under § 2244(d)(2), he was entitled to have the limitations per-
iod tolled until his post-habeas motion for an extension of time to request re-
consideration was denied.

      A COA may issue “if the applicant has made a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Fegans may meet that
standard by establishing “that jurists of reason could disagree with the district
court’s resolution of his constitutional claims or that jurists could conclude the
issues presented are adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Where, as here, the denial of
relief is based on procedural grounds, “a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional right and that
jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

      Fegans has not made the necessary showing. Accordingly, the motion
for a COA is DENIED.

      Fegans asserts that the district court erred by failing to conduct an evi-

                                        2
    Case: 18-20609     Document: 00515319221     Page: 3   Date Filed: 02/21/2020

                                  No. 18-20609

dentiary hearing. We construe his motion for a COA as to the denial of an
evidentiary hearing as a direct appeal of that issue. See Norman v. Stephens,
817 F.3d 226, 234 (5th Cir. 2016). Fegans has not shown that the district court
abused its discretion in denying relief without an evidentiary hearing because
the record was sufficiently developed to allow the district court to find that his
§ 2254 application was time-barred. See § 2254(e)(2); Richards v. Quarterman,
566 F.3d 553, 563 (5th Cir. 2009). The order denying an evidentiary hearing
is AFFIRMED.

                                        3


               Case: 13-13780       Date Filed: 03/12/2015      Page: 1 of 11

                                                                                [PUBLISH]

                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-13780
                              ________________________

                     D.C. Docket No. 3:12-cr-00017-WKW-WC-1

UNITED STATES OF AMERICA,

                                                                     Plaintiff-Appellee,
                                           versus

SHEDRICK D. HOLLIS,

                                                                     Defendant-Appellant.

                              ________________________

                     Appeal from the United States District Court
                         for the Middle District of Alabama
                            _______________________
                                  (March 12, 2015)

Before WILLIAM PRYOR and JORDAN, Circuit Judges, and HAIKALA, ∗
District Judge.

∗
 Honorable Madeline Hughes Haikala, United States District Judge for the Northern District of
Alabama, sitting by designation.
              Case: 13-13780    Date Filed: 03/12/2015    Page: 2 of 11

WILLIAM PRYOR, Circuit Judge:

      This appeal requires us to decide whether the subject of an arrest warrant

may challenge the use of evidence found in plain view during a protective sweep in

a third party’s residence. Law enforcement officers possessed an arrest warrant for

Shedrick Hollis and learned that he could be found in an apartment the officers

suspected to be a drug house. After surrounding the apartment, the officers saw

Hollis through a window, broke through the door, and arrested him, and other

officers conducted a protective sweep of the apartment. During that sweep, the

officers discovered marijuana and firearms in plain view. After he was indicted on

charges of possession of a controlled substance with intent to distribute, 21

U.S.C. § 841(a)(1), felon in possession of a firearm, 18 U.S.C. § 924(c)(1)(A), and

possession of a firearm in furtherance of a drug-trafficking crime, id. §§ 922(g)(1),

924(e), Hollis moved to suppress the drugs and firearms found in the apartment.

The district court denied his motion. Hollis was convicted on all counts. Because

the evidence was discovered in plain view during a protective sweep incident to a

valid arrest, we affirm.

                                I. BACKGROUND

      In February 2011, officers were searching for Hollis based on an outstanding

Georgia arrest warrant for a parole violation. Police officers from Phenix City,

Alabama, and agents of the United States Marshals Service received information

                                          2
               Case: 13-13780    Date Filed: 03/12/2015   Page: 3 of 11

that Hollis might be found in an apartment in Phenix City alleged to be a drug

house. On March 1, 2011, officers surrounded the apartment. Some of the officers

approached the front door of the apartment and knocked. Hollis peered out from

behind a window, and the officers recognized him. The officers yelled “police” and

ordered Hollis to open the door. After waiting for a brief period, the officers used a

battering ram to open the door and arrested Hollis.

       Other officers entered the apartment to conduct a protective sweep of the

area. They found a cosmetic bag with marijuana on a dresser, weapons under a

bed, and marijuana on the kitchen counter. The officers then obtained a search

warrant for the premises. In a thorough search of the apartment, they discovered

about a pound of cocaine, large amounts of marijuana, crack cocaine, ecstasy,

scales, and about $5,000 in cash. One of the scales had a latent fingerprint on it,

later attributed to Hollis.

       A federal grand jury indicted Hollis on two counts of possession of a

controlled substance with intent to distribute, 21 U.S.C. § 841(a)(1), one count of

possession of a firearm in furtherance of a drug trafficking crime, 18 U.S.C.

§ 924(c)(1)(A), and one count of felony possession of a firearm, id. §§ 922(g)(1),

924(e). Before trial, Hollis moved to suppress the evidence obtained from the

apartment on the ground that the officers conducted an illegal, warrantless search

in violation of his rights under the Fourth Amendment. A magistrate judge held an

                                          3
              Case: 13-13780     Date Filed: 03/12/2015    Page: 4 of 11

evidentiary hearing and found that Hollis was not invited into the apartment by its

owner, but by an acquaintance of the owner. Because Hollis was “a guest of an

uninvited guest,” the magistrate judge recommended that Hollis’s motion to

suppress be denied. The district court adopted the report and recommendation of

the magistrate judge and denied Hollis’s motion to suppress.

      Before trial, the government moved to exclude the testimony of Hollis’s

fingerprint expert, Lawden Yates, Jr. The government requested a hearing to

confirm Yates’s qualifications under Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 113 S. Ct. 2786 (1993). The district court held a hearing and

ruled that Yates could not testify “as to fingerprint comparison.” But the district

court reserved judgment on whether Yates could testify about whether the latent

fingerprint was of sufficient quality to make a comparison. Yates later testified that

there “shouldn’t be any” difference between the expertise required to compare

fingerprints and the expertise used to judge the sufficiency of a latent fingerprint

for comparison. He also testified that when in doubt, a technician should send a

print to the laboratory to see if an identification can be made. Because the district

court had already ruled that Yates was not qualified to testify about fingerprint

comparisons and the same expertise was required to judge the sufficiency of a

latent print for comparison, the district court ruled that Yates could not testify

about the sufficiency of the print taken from the scale.

                                           4
              Case: 13-13780     Date Filed: 03/12/2015    Page: 5 of 11

      The jury convicted Hollis on all counts. The district court sentenced Hollis

to a term of imprisonment of 420 months, followed by eight years of supervised

release.

                          II. STANDARDS OF REVIEW

      Two standards of review govern this appeal. When we review a motion to

suppress, we review de novo the legal conclusions of the district court; we review

for clear error its findings of fact; and we review the entire record in the light most

favorable to the party prevailing below. United States v. Newsome, 475 F.3d 1221,

1223–24 (11th Cir. 2007). We review for abuse of discretion the decision of the

district court to exclude expert testimony. Gen. Elec. Co. v. Joiner, 522 U.S. 136,

141–42, 118 S. Ct. 512, 517 (1997).

                                 III. DISCUSSION

      We divide our discussion in two parts. First, we explain that the drugs and

firearms seized from the Phenix City apartment were admissible because they were

found in plain view during a protective sweep incident to a valid arrest. Second, we

explain that the district court did not abuse its discretion when it refused to allow

Yates to testify as an expert about the sufficiency of the latent fingerprint for

comparison.

                                           5
              Case: 13-13780     Date Filed: 03/12/2015    Page: 6 of 11

A. The Officers Were Entitled to Seize Evidence in Plain View During a Protective
                       Sweep Incident to a Valid Arrest.

      Hollis argues that the district court erred when it admitted the evidence

seized from the apartment because he had a reasonable expectation of privacy as a

guest in the apartment. The government denies that Hollis had a reasonable

expectation of privacy as a guest in the apartment and, alternatively, argues that the

evidence was discovered in plain view during a protective sweep incident to a valid

arrest. Because we agree with the alternative argument of the government, we need

not address whether Hollis had a reasonable expectation of privacy as a guest in

the apartment.

      “[A]n arrest warrant founded on probable cause implicitly carries with it the

limited authority to enter a dwelling in which the suspect lives . . . when there is

reason to believe the suspect is within.” Payton v. New York, 445 U.S. 573, 603,

100 S. Ct. 1371, 1388 (1980). “Law enforcement officers are permitted, in the

context of a valid arrest, to conduct a protective sweep of a residence for officers’

safety.” United States v. Yeary, 740 F.3d 569, 579 (11th Cir. 2014). Police can

execute an arrest warrant by entering a residence if they have a “reasonable belief

that the location to be searched is the suspect’s dwelling, and that the suspect is

within the residence at the time of entry.” United States v. Magluta, 44 F.3d 1530,

1535 (11th Cir. 1995).

                                           6
              Case: 13-13780         Date Filed: 03/12/2015   Page: 7 of 11

       Although the police did not believe that the apartment was Hollis’s dwelling,

that fact is of no help to Hollis:

       A person has no greater right of privacy in another’s home than in his
       own. If an arrest warrant and reason to believe the person named in
       the warrant is present are sufficient to protect that person’s [F]ourth
       [A]mendment privacy rights in his own home, they necessarily suffice
       to protect his privacy rights in the home of another.

United States v. Agnew, 407 F.3d 193, 197 (3d Cir. 2005) (internal quotation marks

and citation omitted). To be sure, when a police officer effectuates an arrest

warrant in a third-party’s abode, the officer may violate the Fourth Amendment

rights of the third-party, Steagald v. United States, 451 U.S. 204, 212–16, 101

S. Ct. 1642, 1648–50 (1981). But we agree with our sister circuits that the subject

of an arrest warrant cannot challenge the execution of that warrant and the later

discovery of evidence in a third-party’s home. See, e.g., United States v. Jackson,

576 F.3d 465, 468 (7th Cir. 2009); United States v. McCarson, 527 F.3d 170, 172–

73 (D.C. Cir. 2008); Agnew, 407 F.3d at 197; United States v. Kaylor, 877 F.2d

658, 663 (8th Cir. 1989); United States v. Underwood, 717 F.2d 482, 484 (9th Cir.

1983); United States v. Buckner, 717 F.2d 297, 299–300 (6th Cir. 1983); but see

United States v. Weems, 322 F.3d 18, 23 n.3 (1st Cir. 2003) (assuming but not

deciding that a suspect can challenge the search of a third-party’s home incident to

the suspect’s arrest).

                                              7
              Case: 13-13780     Date Filed: 03/12/2015   Page: 8 of 11

      The protective sweep, performed incident to Hollis’s arrest, was a valid

attempt to ensure that the apartment did not contain “other persons who are

dangerous and who could unexpectedly launch an attack.” United States v.

Hromada, 49 F.3d 685, 690 (11th Cir. 1995) (internal quotation marks and citation

omitted). The government established that “there [were] articulable facts [that] . . .

would warrant a reasonably prudent officer in believing that the area to be swept

harbor[ed] an individual posing a danger to those on the arrest scene.” Maryland v.

Buie, 494 U.S. 325, 334, 110 S. Ct. 1093, 1098 (1990); see also Hromada, 49 F.3d

at 690 (holding that a protective sweep was valid where the “purpose of the

protective sweep . . . was to secure [the home] and investigate the officers’

reasonable suspicion” that others were in the home). The district court found that

the officers suspected that the apartment was a “drug house” that could hold “other

occupants.” One of the officers testified that he had been told that the apartment

was a “drug house,” with a “high level of activity,” where “people [were] in and

out of the house all hours of the day or night,” and that they “could expect to

encounter a number of people inside.” Based on that information, the officers

could draw the “rational inference,” Buie, 494 U.S. at 334, 110 S. Ct. at 1098, that

there might be armed individuals inside the apartment.

      Because the officers could conduct a protective sweep, the evidence they

found in plain view was admissible. As the Supreme Court has explained, “if

                                           8
              Case: 13-13780     Date Filed: 03/12/2015    Page: 9 of 11

contraband is left in open view and is observed by a police officer from a lawful

vantage point, there has been no invasion of a legitimate expectation of privacy

and thus no ‘search’ within the meaning of the Fourth Amendment—or at least no

search independent of the initial intrusion that gave the officers their vantage

point.” Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S. Ct. 2130, 2137 (1993).

As part of the sweep, the officers found marijuana in plain view on a dresser in the

bedroom and on a counter in the kitchen, and they found loaded firearms under a

bed. It “was only coincidental that [the officers] discovered contraband in plain

view while conducting the [protective] sweep.” Yeary, 740 F.3d at 580. The

officers then obtained a search warrant for the apartment and found additional

contraband. As a result, all of the evidence found during both searches was

admissible.

   B. The District Court Did Not Abuse Its Discretion When It Refused to Admit
                               Yates’s Testimony.

       Hollis also argues that the district court abused its discretion when it refused

to allow Yates, a forensics expert, to testify about the sufficiency of a latent

fingerprint for comparison, but we disagree. “[T]he task of evaluating the

reliability of expert testimony is uniquely entrusted to the district court under

Daubert, and . . . we give the district court considerable leeway in the execution of

its duty.” United States v. Brown, 415 F.3d 1257, 1266 (11th Cir. 2005) (internal

quotation marks and citation omitted). The “rules relating to Daubert issues are not
                                           9
             Case: 13-13780      Date Filed: 03/12/2015    Page: 10 of 11

precisely calibrated and must be applied in case-specific evidentiary circumstances

that often defy generalization.” Id. Hollis must establish that the district court

“abdicat[ed]” its duty, or that it “applie[d] the wrong law, follow[ed] the wrong

procedure, base[d] its decision on clearly erroneous facts, or commit[ted] a clear

error in judgment.” Id. “[U]nder the abuse of discretion standard of review there

will be occasions in which we affirm the district court even though we would have

gone the other way had it been our call.” United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (internal quotation marks and citation omitted). Hollis

cannot satisfy this burden.

      The district court applied the correct law, correctly ordered a Daubert

hearing, and did not base its decision on clearly erroneous facts. See Brown, 415

F.3d at 1266. The district court ruled that Yates could not testify as an expert

because he was not “qualified” as an expert in fingerprint comparison. See Fed. R.

Evid. 702. The district court then ruled that Yates could not testify about the

sufficiency of a latent fingerprint for comparison because Yates himself testified

that the expertise required to determine sufficiency is identical to the expertise

required to perform comparisons. Hollis does not challenge the ruling that Yates

was unqualified to testify about fingerprint comparison, and Hollis fails to explain

how Yates, if not qualified as an expert on comparison, could be qualified as an

expert on sufficiency, when it was Yates who testified that there should be no

                                           10
              Case: 13-13780     Date Filed: 03/12/2015   Page: 11 of 11

difference in the expertise required for each analysis. Accordingly, the district

court was within its “considerable leeway,” Brown, 415 F.3d at 1266 (internal

quotation marks and citation omitted), when it concluded that Yates lacked the

necessary expertise to testify about the sufficiency of a latent fingerprint for

comparison.

                                IV. CONCLUSION

      We AFFIRM Hollis’s conviction.

                                          11


                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                           March 6, 2020
                         _________________________________
                                                                         Christopher M. Wolpert
                                                                             Clerk of Court
 BILLY JOE BARKER, JR.,

       Petitioner - Appellant,                                 No. 19-3266
                                                      (D.C. No. 5:19-CV-03213-SAC)
 v.                                                              (D. Kan.)

 DAN SCHNURR,

       Respondent - Appellee.
                      _________________________________

             ORDER DENYING CERTIFICATE OF APPEALABILITY
                    _________________________________

Before HARTZ, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

       Applicant Billy Joe Barker Jr., a pro se prisoner in the custody of the Kansas

Department of Corrections, requests a certificate of appealability (COA) to challenge the

denial by the United States District Court for the District of Kansas of his application for

relief under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring a COA for a

prisoner in state custody to appeal from the denial of relief under § 2254). Because

Applicant has failed to make a substantial showing of the denial of a constitutional right,

as required by 28 U.S.C. § 2253(c)(2), we deny a COA and dismiss the appeal.

       In 1998 Applicant was convicted on multiple charges including attempted first-

degree murder of three police officers and the aggravated assault of a fourth. He was

sentenced to a total term of 562 months’ imprisonment. On appeal the Kansas Court of

Appeals (KCOA) affirmed Applicant’s convictions and sentences except it dismissed the
conviction of aggravated assault and set aside one of the attempted-murder convictions,

permitting the State to retry that charge on remand. See State v. Barker, No. 81,092,

2000 Kan. App. LEXIS 609, at *1 (Kan. Ct. App. May 26, 2000) (unpublished). On

remand the State declined to retry the attempted-murder charge; and in 2001 the district

court resentenced Applicant on the remaining convictions again to 562 months’

imprisonment.

       In 2016 Applicant claimed his sentence was illegal based on new case law

governing his criminal-history score. The Kansas district court reduced his sentence to

514 months, but it rejected his claim that the court had lacked jurisdiction to resentence

him in 2001. The KCOA affirmed on appeal, stating, among other things, that the

resentencing under a new statute did not violate Applicant’s due-process rights because

his sentence was not increased and the statute did not change existing law but merely

clarified it. See State v. Barker, No. 117,901, 2018 WL 5093294, at *3 (Kan. Ct. App.

Oct. 19, 2018).

       Applicant filed his § 2254 application in federal district court on October 21,

2019. The application asserted only one ground for relief: “28 U.S.C. 2254 –

Rule 1.[a][1][2][b], Guarantee Fundamental 6th Amendment Right To A Fair And

Speedy Trial, Due Process Of Law.” R., Vol. 1 at 8. For supporting facts, the application

stated only:

       The facts outlined in the Kansas Supreme Court’s decision [accompanying
       as appendix i] substantially states the nature and procedural posture of this
       case. No further statement of facts is necessary except for . . . the timeliness
       of this petition’s one-year statute of limitation as contained in 28 U.S.C.
       2244[d] October 19[], 2018, [does-not bar pro se petitioner’s petition].

                                              2
R., Vol. 1 at 8 (brackets in original, capitalization omitted). (We note, however, that in

response to a question on the court’s form (“Is there any ground in this petition that has

not been presented in some state or federal court? If so, which ground or grounds have

not been presented, and state your reasons for not presenting them[?]”), the application

stated: “In light of the court’s May 26th, 2000 decision for a ‘new trial,’ I still set in

state-prison beyond my right to a ‘speedy trial.’ Imprisonment beyond one’s

constitutional term violates U.S.A. the 8th amendment to cruel and unusual punishment

and the 14th amendment due process.” R., Vol. 1 at 14. (capitalization and citation

omitted).)

       Unable to discern any comprehensible claim in the ground for relief stated in the

application, the district court issued a five-page order to show cause on October 24. The

order explained why the application did not appear to raise any cognizable claim and

ordered Applicant to show cause why the petition should not be summarily dismissed for

(1) failure to state a violation of a federal right; (2) failure to exhaust state-court

remedies; and (3) failure to state a clear and viable due-process claim. The order required

Applicant to respond by November 25, 2019. But Applicant submitted no response, and

on November 27 the district court dismissed the case and declined to issue a COA.

Applicant filed a timely notice of appeal.

       A COA will issue “only if the applicant has made a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate whether (or,

for that matter, agree that) the [application] should have been resolved in a different

                                                3
manner or that the issues presented were adequate to deserve encouragement to proceed

further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks

omitted). In other words, the applicant must show that the district court’s resolution of

the constitutional claim was either “debatable or wrong.” Id.

       The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides

that when a claim has been adjudicated on the merits in a state court, a federal court can

grant habeas relief only if the applicant establishes that the state-court decision was

“contrary to, or involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Thus, a federal court may not grant relief simply because it concludes in its independent

judgment that the relevant state-court decision applied clearly established federal law

erroneously or incorrectly. See id. Rather, “[i]n order for a state court’s decision to be an

unreasonable application of this Court’s case law, the ruling must be objectively

unreasonable, not merely wrong; even clear error will not suffice.” Virginia v. LeBlanc,

137 S. Ct. 1726, 1728 (2017) (per curiam) (internal quotation marks omitted).

“AEDPA’s deferential treatment of state court decisions must be incorporated into our

consideration of a habeas petitioner’s request for [a] COA.” Dockins v. Hines, 374 F.3d

935, 938 (10th Cir. 2004).

       Applicant’s brief in this court is scarcely more informative than his § 2254

application; and, of course, he cannot now raise claims not raised in the district court, see

Parker v. Scott, 394 F.3d 1302, 1319–20 (10th Cir. 2005) (issues not raised in district

court in § 2254 proceeding are waived). We agree with the district court that the

                                              4
application is inadequate to state a claim for relief. Applicant does not explain how his

trial was unfair. Insofar as he is claiming that he has not obtained a speedy trial on the

remanded attempted-murder charge, the State’s dismissal of the charge on remand

eliminated any need for a new trial. And insofar as his due-process claim is a reiteration

of the state-court due-process claim he made in challenging his resentencing, he has

provided no argument (and we can think of none) why the KCOA’s resolution of the

claim was an unreasonable application of United States Supreme Court law. Thus, no

reasonable jurist could debate the propriety of the district court’s dismissal of the § 2254

application

       We DENY a COA and DISMISS the appeal.

                                              Entered for the Court

                                              Harris L Hartz
                                              Circuit Judge

                                              5