                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           MAR 21 2000
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 WAYNE STEPHENS,

           Petitioner - Appellant,
 vs.                                                    No. 99-1529
                                                     (D.C. No. 99-Z-805)
 E. E. ATHERTON; ATTORNEY                                 (D. Colo.)
 GENERAL FOR THE STATE OF
 COLORADO,

           Respondents - Appellees.


                              ORDER AND JUDGMENT *


Before BRORBY, KELLY, and MURPHY, Circuit Judges. **


       Mr. Stephens, an inmate appearing pro se, seeks to appeal from the denial

of his habeas application, 28 U.S.C. § 2254. He was convicted in Colorado state

court of first degree aggravated motor vehicle theft, Colo. Rev. Stat. § 18-4-409,

and two counts of being a habitual criminal. He was sentenced to twenty-five


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
years imprisonment. His sentence was affirmed on direct appeal. See People v.

Stephens, 837 P.2d 231 (Colo. Ct. App. 1992), cert. denied as improvidently

granted, 854 P.2d 231 (Colo. 1993). Mr. Stephens contends that he exhausted the

claims he brings now in state post-conviction proceedings. His federal

application for habeas relief was denied by the district court on the merits. The

district court also denied a motion to reconsider, and denied a certificate of

appealability. We deny a certificate of appealability and dismiss the appeal.

      The facts are not in dispute. On September 15, 1989, Mr. Stephens

borrowed his employer’s car. The employer gave permission for Mr. Stephens to

use the car until the morning of September 16, 1989. Mr. Stephens never returned

the car, and “was arrested one month later with the vehicle still in his

possession.” Stephens, 837 P.2d at 233.

      Mr. Stephens claims that his trial counsel was ineffective for failing to

raise a claim of fatal variance between the allegations in the indictment and the

crime of which he was convicted. He argues that the indictment was

constructively amended to require proof of specific intent because, under his

interpretation of the statute, the government would have to show that he never had

permission to possess the car. Mr. Stephens relies exclusively upon People v.

Andrews, 632 P.2d 1012 (Colo. 1981), in which the Colorado Supreme Court

upheld a § 18-4-409 conviction and noted that the defendant “neither sought nor


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obtained permission from [his employer] to use the vehicle.” Id. at 1017.

      “‘An indictment is constructively amended if the evidence presented at

trial, together with the jury instructions, raises the possibility that the defendant

was convicted of an offense other than that charged in the indictment.’” Hunter

v. New Mexico, 916 F.2d 595, 599 (10th Cir. 1990) (citation omitted). According

to Mr. Stephens, the indictment stated:

             On or about September 16, 1989, Wayne Stephens did
             unlawfully, feloniously and knowingly obtain and
             exercise control over the motor vehicle of Howard Smith
             without authorization and by threat and deception and
             did retain possession and control over the motor vehicle
             for more than twenty-four hours, wherein the value of
             said motor vehicle being less than ten thousand dollars.

Aplt. Br. at 16a. This indictment tracks the language of Colo. Rev. Stat. § 18-4-

409(2), which states: “A person commits aggravated motor vehicle theft in the

first degree if he knowingly obtains or exercises control over the motor vehicle of

another without authorization or by threat or deception and: (a) Retains

possession or control of the motor vehicle for more than twenty-four hours . . . .”

      Mr. Stephens contends that because he had received permission from Mr.

Smith to use the vehicle for some time, he could not thereafter be convicted under

§ 18-4-409. His reliance upon Andrews for this argument is patently mistaken.

In Andrews, the defendant worked as a salesman for a car dealership which

provided “demonstrator vehicles” for use by its employees in connection with


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their sales duties. 632 P.2d at 1014. So long as they were employed by the

dealership, the salesmen were allowed to use the demonstrator vehicles for their

private use. See id. The defendant took the car home with him one day and never

returned with it. In upholding his conviction under § 18-4-409, the Colorado

Supreme Court noted that defendant left work and “thereafter he neither sought

nor obtained permission from [his employer] to use the vehicle.” Id. at 1017

(emphasis added).

      Andrews is on all fours with the present case. In both instances, the

defendant had permission from his employer to use the vehicle. It was only after

this permission ended that the crime began. Mr. Stephens’ argument that a

constructive variance existed between the indictment and the crime for which he

was convicted is meritless. Therefore, his attorney was not ineffective in failing

to raise this claim.

      We DENY a certificate of appealability as Mr. Stephens has not “made a

substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253,

DENY the motion to proceed in forma pauperis, and DISMISS the appeal.


                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge



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