Petitioner filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming his sentence was unconstitutional because the jury instructions were based on an ex post facto application of a penal statute.
We grant the certificate of appealability required by 28 U.S.C. § 2253. However, we affirm for the reasons given by the magistrate judge in his Report and Recommendation filed February 10, 1997, and adopted by the district court in its Order filed May 16, 1997. To the extent that Petitioner claims his due process rights were substantially affected by what he terms "ex parte communications," we hold that this argument has no merit.
Entered for the Court
Monroe G. McKay
*. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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.