F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 22 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
JULIUS LESLIE STEWART,
Petitioner-Appellant,
v.
No. 04-2087
(District of New Mexico)
TIM LEMASTER, Warden, New
(D.C. No. CIV-03-687 WPJ/LFG)
Mexico State Penitentiary;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER
Before EBEL, MURPHY, and McCONNELL, Circuit Judges.
This matter is before the court on Julius Stewart’s pro se request for a
certificate of appealability (“COA”). Stewart seeks a COA so that he can appeal
the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. See 28
U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from a “final
order in a habeas corpus proceeding in which the detention complained of arises
out of process issued by a State court,” unless the petitioner first obtains a COA).
Because Stewart has not “made a substantial showing of the denial of a
constitutional right,” id. § 2253(c)(2), this court denies his request for a COA and
dismisses this appeal.
After his probation was revoked by a New Mexico state court, Stewart filed
the instant § 2254 habeas corpus petition rasing the following three claims: (1)
the arrest leading to the probation-revocation proceedings was illegal; (2) the
sentence imposed upon revocation of probation included an improper doubling of
the habitual offender enhancement from four to eight years; and (3) his sentence
upon revocation of probation was miscalculated. The matter was referred to a
magistrate judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1). In a
comprehensive report and recommendation, the magistrate judge concluded that
the first two claims set out in Stewart’s § 2254 petition were procedurally barred
because Stewart had failed to raise them on direct appeal. The magistrate judge
further concluded that Stewart’s third claim failed on the merits because the
sentence imposed by the state court upon revocation of probation was entirely
consistent with the sentence contemplated in the plea agreement should Stewart
violate the terms of this probation. Upon de novo review, the district court
adopted the report and recommendation and dismissed Stewart’s § 2254 petition
with prejudice.
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To be entitled to a COA, Stewart must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite
showing, he must demonstrate “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations
omitted). In evaluating whether Stewart has satisfied his burden, this court
undertakes “a preliminary, though not definitive, consideration of the [legal]
framework” applicable to each of his claims. Id. at 338. Although Stewart need
not demonstrate his appeal will succeed to be entitled to a COA, he must “prove
something more than the absence of frivolity or the existence of mere good faith.”
Id.
Having undertaken a review of Stewart’s application for a COA and
appellate filings, the magistrate judge’s report and recommendation, the district
court’s order, and the entire record before this court pursuant to the framework
set out by the Supreme Court in Miller-El, this court concludes that Stewart is not
entitled to a COA. The district court’s resolution of Stewart’s § 2254 petition is
not reasonably subject to debate and the issues he seeks to raise on appeal are not
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adequate to deserve further proceedings. Accordingly, this court DENIES
Stewart’s request for a COA and DISMISSES this appeal.
Entered for the Court
PATRICK FISHER, Clerk of Court
By
Deputy Clerk
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