After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Charles Day appeals from the district court's denial of his petition for habeas corpus.2 Mr. Day is currently serving a sixty year sentence for second degree fraud after former conviction of two or more felonies. Mr. Day argues in his habeas petition that the State of Oklahoma is violating his rights under the equal protection clause of the Fourteenth Amendment because he is being denied emergency time credits (CAP credits) available to other prisoners under the Oklahoma Prison Overcrowding Emergency Powers Act, Okla. Stat. tit. 57, 570-76 (1991 & Supp.1993-94) (the "Act").3 The Act provides for the application of sixty day time credits to certain prisoners convicted of nonviolent crimes when the state prison population exceeds ninety-five percent of capacity. Okla. Stat. tit. 57, 573. Excluded from the group of eligible prisoners are those prisoners who have been convicted of second or subsequent offenses pursuant to sections 51 or 52 of Title 21 of the Oklahoma Statutes. Mr. Day falls within the excluded group.

The district court adopted the magistrate judge's recommendation that the petition be dismissed on two grounds. First, the district court held that the petition constituted an abuse of the writ in that Mr. Day had filed at least one previous petition that failed to raise the issue in the current petition. The government bears the burden of adequately asserting an abuse of the writ. McCleskey v. Zant, 111 S. Ct. 1454, 1470 (1991). The burden then falls on the petitioner to show cause for his failure to raise the claims in his previous petitions, as well as prejudice therefrom. Id. The district court held that the government had adequately raised the abuse of the writ issue, finding that the Act was in force at the time Mr. Day had filed a previous habeas petition, and that Mr. Day had not shown cause for not raising the claims made in the instant petition at the time of his earlier petition. The record before us is insufficient for us to rule on this aspect of the district court's ruling. The nature of the Act is such that the availability of emergency time credits is dependent upon overcrowding of the Oklahoma state prisons and a declaration of a prison overcrowding state of emergency. See Okla. Stat. tit. 57, 572-73. We have no evidence before us that at the time that Mr. Day filed the earlier petition cited by the government and the district court there was such a declared emergency. Accordingly, we cannot determine whether the issue raised in this petition was available to Mr. Day at the time he filed his earlier petition. We therefore decline to rule on the district court's holding on abuse of the writ.

However, despite the district court's ruling on abuse of the writ, that court proceeded to the merits of the appeal, concluding that the differential treatment accorded repeat offenders under the Act did not constitute a violation of due process or the equal protection clause. After reviewing the briefs of the parties, the record on appeal, and the district court's Order of August 30, 1993, we AFFIRM for substantially the reasons set forth by the district court on this point in that Order.

AFFIRMED.