F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 11 2003
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 02-3253
 v.                                           D.C. No. 01-CV-3229-SAC and
                                                    98-CR-40097-SAC
 SHAWN E. STEWART,                                     (D. Kansas)

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


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


      Mr. Stewart seeks to appeal from the denial of his motion pursuant to 28

U.S.C. § 2255. Mr. Stewart pleaded guilty to six counts of robbery of facilities in

interstate commerce, 18 U.S.C. § 1951, and two counts of use of a firearm in

relation to a crime of violence, 18 U.S.C. § 924(c)(1). He was sentenced to 378

months of imprisonment, three years supervised release and ordered to pay a

      *
        This order and judgment is not binding precedent, except under the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 case is therefore ordered submitted without oral argument.
special assessment of $800 and restitution of $10,237.10. We affirmed the

judgment in United States v. Stewart, Nos. 99-3159 & 99-3270, 

(10th Cir. June 2, 2000). In his § 2255 motion, Mr. Stewart claims ineffective

assistance of counsel and that he was denied due process when he was indicted

and convicted for two offenses under § 1951 (counts 1 and 3) without any nexus

to interstate commerce. He contends that the firearms counts (counts 2 and 4) are

defective because they depend upon federal jurisdiction over counts 1 and 3. On

appeal from the denial of his § 2255 motion, he argues that he was denied his

Fifth Amendment right to due process of law because he was convicted on a

guilty plea that lacked a factual basis establishing jurisdiction. Aplt. Br. at 22.

      In order for this court to grant a certificate of appealability (“COA”), Mr.

Stewart must make a “substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). Where the district court has denied a claim on the merits,

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.” Slack v. McDaniel, 

, 484 (2000) (quotations omitted).

Where the district court has denied a claim on procedural grounds, he must

demonstrate “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional right and that jurists of reason


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would find it debatable whether the district court was correct in its procedural

ruling.” 

adhered to the view that only a potential effect on interstate

commerce is necessary to satisfy the interstate commerce element of a § 1951(a)

offense. United States v. Toles, 

, 969 (10th Cir. 2002). With respect

to the jurisdictional element, Mr. Stewart pleaded guilty unconditionally and as a

matter of law he admitted all material facts charged in the indictment, see United

States v. Broce, 

, 569 (1989), including all factual predicates to

jurisdiction, see United States v. Brown, 

, 521-22 (10th Cir. 1998).

For substantially the reasons given by the district court, R. Doc. 78, we DENY a

COA and DISMISS the appeal. We GRANT the motion to file Appendix I under

seal.

                                        Entered for the Court


                                        Paul J. Kelly, Jr.
                                        Circuit Judge




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