                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUN 2 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CLIFFORD STEWART,

                Petitioner-Appellant,

    v.                                                   No. 99-1121
                                                     (D.C. No. 96-N-2786)
    MICHAEL ROGERSON, Acting Chief                         (D. Colo.)
    Probation Officer, Fourth Judicial
    District, State of Colorado; CHUCK
    TULISZEWSKI, Probation Officer;
    ATTORNEY GENERAL FOR THE
    STATE OF COLORADO,

                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      This order and judgment is not binding precedent, except under the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 court’s 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            district court ,


                                                -2-
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 court’s disposition in light of appellant’s

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-
