02-1143 -- Stamps v. Fourth Judicial District of the State of Colorado -- 10/17/2002

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UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

IVAN COMMODORE STAMPS,

Petitioner - Appellant,

FOURTH JUDICIAL DISTRICT OF THE STATE OF COLORADO; ATTORNEY GENERAL OF THE STATE OF COLORADO,

Respondents - Appellees.

No. 02-1143

D.C. No. 02-Z-233

(D. Colorado)

ORDER AND JUDGMENT^(*)

Before KELLY, McKAY, 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 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.

Petitioner Ivan Stamps is before this court seeking a certificate of appealability ("COA") so he can appeal the district court's dismissal of the habeas petition he filed pursuant to 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (providing that no appeal may be taken from the denial of a § 2254 petition unless the petitioner first obtains a COA). Stamps is not entitled to a COA unless he makes "a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). Stamps also seeks to proceed in forma pauperis on appeal.

In his § 2254 petition, Stamps challenged the imposition of a mandatory parole period as part of the sentence he received after his felony conviction. Stamps claimed the mandatory parole provision violates the separation of powers doctrine, constitutes double jeopardy, and denies him due process of law. The district court rejected the issues raised by Stamps on their merits and denied the § 2254 petition. Stamps raises the same issues in his application for a COA and appellate brief.

This court has reviewed Stamps' application for a COA, his appellate brief, and the entire record on appeal. That de novo review clearly demonstrates the district court's dismissal of Stamps' § 2254 petition is not deserving of further proceedings or subject to a different resolution on appeal. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, he has not demonstrated the denial of a constitutional right. Accordingly, this court denies Stamps' request for a COA for substantially those reasons set forth in the district court's order dated March 11, 2002, and dismisses this appeal. Stamps' application to proceed in forma pauperis on appeal is denied. All remaining pending motions are denied.

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

FOOTNOTES
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^*. 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.

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