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    The United States Court of Appeals for the Tenth Circuit is considering Clifford Stewart's appeal of the denial of his habeas corpus petition. Stewart was convicted of felony theft and placed on probation, with a restitution order of $2 million. In his petition, he argued that the restitution order violated the Ex Post Facto clause and that the jury verdicts were inconsistent. The district court denied the petition. The Court of Appeals examines Stewart's arguments but denies his request for a certificate of appealability, agreeing with the district court that he failed to demonstrate a denial of a constitutional right.

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    Filed: Patrick Fisher

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    The United States Court of Appeals for the Tenth Circuit is considering Clifford Stewart's appeal of the denial of his habeas corpus petition. Stewart was convicted of felony theft and placed on probation, with a restitution order of $2 million. In his petition, he argued that the restitution order violated the Ex Post Facto clause and that the jury verdicts were inconsistent. The district court denied the petition. The Court of Appeals examines Stewart's arguments but denies his request for a certificate of appealability, agreeing with the district court that he failed to demonstrate a denial of a constitutional right.

    Original Description:

    Filed: 2000-06-02 Precedential Status: Non-Precedential Docket: 99-1121

    Original Title

    Stewart v. Rogerson, 10th Cir. (2000)

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    The United States Court of Appeals for the Tenth Circuit is considering Clifford Stewart's appeal of the denial of his habeas corpus petition. Stewart was convicted of felony theft and placed on probation, with a restitution order of $2 million. In his petition, he argued that the restitution order violated the Ex Post Facto clause and that the jury verdicts were inconsistent. The district court denied the petition. The Court of Appeals examines Stewart's arguments but denies his request for a certificate of appealability, agreeing with the district court that he failed to demonstrate a denial of a constitutional right.

    Copyright:

    Public Domain
    Download as PDF or read online from Scribd
    Download as pdf
    28 views3 pages

    Filed: Patrick Fisher

    Uploaded by

    Scribd Government Docs
    The United States Court of Appeals for the Tenth Circuit is considering Clifford Stewart's appeal of the denial of his habeas corpus petition. Stewart was convicted of felony theft and placed on probation, with a restitution order of $2 million. In his petition, he argued that the restitution order violated the Ex Post Facto clause and that the jury verdicts were inconsistent. The district court denied the petition. The Court of Appeals examines Stewart's arguments but denies his request for a certificate of appealability, agreeing with the district court that he failed to demonstrate a denial of a constitutional right.

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    of 3

    F I L E D

    UNITED STATES COURT OF APPEALS

    United States Court of Appeals


    Tenth Circuit

    FOR THE TENTH CIRCUIT

    JUN 2 2000

    PATRICK FISHER
    Clerk

    CLIFFORD STEWART,
    Petitioner-Appellant,
    v.
    MICHAEL ROGERSON, Acting Chief
    Probation Officer, Fourth Judicial
    District, State of Colorado; CHUCK
    TULISZEWSKI, Probation Officer;
    ATTORNEY GENERAL FOR THE
    STATE OF COLORADO,

    No. 99-1121
    (D.C. No. 96-N-2786)
    (D. Colo.)

    Respondents-Appellees.
    ORDER AND JUDGMENT

    Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination

    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    of this appeal.

    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

    therefore ordered submitted without oral argument.


    Clifford Stewart appeals from the

    district court s denial of his habeas

    petition, filed pro se pursuant to 28 U.S.C. 2254. We have jurisdiction over this
    appeal pursuant to 28 U.S.C. 1291 and 2253. Under the provisions of the
    Antiterrorism and Effective Death Penalty Act, appellant must obtain a certificate
    of appealability before his appeal can proceed before this court.

    See

    id. 2253(c)(1)(A). The district court denied appellant a certificate of


    appealability. To proceed on appeal, therefore, he must demonstrate a
    substantial showing of the denial of a constitutional right before a certificate of
    appealability can issue in this court.

    See id. 2253(c)(2).

    Appellant was convicted of felony theft after trial to a jury. He was placed
    on probation and ordered to pay restitution in the amount of two million dollars.
    He presented two issues to the

    district court in his habeas petition: (1) that the

    trial courts restitution order violated the

    ex post facto provisions of the

    Constitution, and (2) that the verdicts returned by the jury were inconsistent and
    therefore constitutionally invalid.

    See R. Vol. I, doc. 1, at 4-5. He argues those

    same issues on appeal except that he has expanded the first issue into two
    arguments, one based on ex post facto and another on due process. Without
    determining whether the due process argument was presented to the
    -2-

    district court ,

    we have considered the two arguments together, as it appears they are essentially
    the same issue. To the extent that appellant raises other arguments not presented
    or addressed by the district court , however, we do not consider those.

    See Walker

    v. Mather (in re Walker) , 959 F.2d 894, 896 (10th Cir. 1992).
    Our review of the district courts disposition in light of appellants

    arguments and the applicable law convinces us that, for substantially the reasons
    set forth in the magistrate judge s findings and recommendation,

    see R. Vol. I,

    doc. 23, appellant has not demonstrated the denial of a constitutional right.
    Accordingly, we DENY appellant a certificate of appealability and DISMISS this
    appeal. The mandate shall issue forthwith.

    Entered for the Court

    Stephen H. Anderson
    Circuit Judge

    -3-

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