                                                                         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      After his probation was revoked by a New Mexico state court, Stewart filed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




                                         -3-
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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