* This order and judgment is not binding precedent, except under the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.

F I L E D

United States Court of Appeals

Tenth Circuit

OCT 27 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

DENNIS ESTELL,

Petitioner-Appellant,

v.

ATTORNEY GENERAL OF THE

STATE OF OKLAHOMA,

Respondent-Appellee.

No. 98-6083

(D.C. No. 96-CV-1617)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before BRORBY , BRISCOE , and LUCERO , 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); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
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Dennis Estell appeals from the district court’s order denying his habeas

corpus petition, filed pursuant to 28 U.S.C. § 2254. Appellant was convicted of

burglary in the second degree after former conviction of two or more felonies, for

which he was sentenced to a fifty-year term in prison. Our jurisdiction over his

appeal arises under 28 U.S.C. §§ 1291 and 2253. Because appellant’s habeas

petition was filed after the enactment of the Antiterrorism and Effective Death

Penalty Act of 1996, the certificate of appealability provision created by that act

is applicable to his case. See 28 U.S.C. § 2253(c)(1)(A). The district court

denied appellant a certificate of appealability. Therefore, appellant must

demonstrate “a substantial showing of the denial of a constitutional right” before

this court considers his appeal. See id. § 2253(c)(2). Respondent has not filed a

brief in this appeal. 

Appellant presents several arguments in support of his motion for a

certificate of appealability. He contends that the district court erred because it

failed to make a de novo review of the record following appellant’s objections to

the magistrate judge’s report, failed to liberally construe appellant’s habeas

petition to include a due process claim in connection with challenges to his

sentence enhancement on the basis of prior convictions, and failed to hold a

hearing on his petition. He argues constitutional error in his sentencing based on

1) his allegations that the prior convictions were not all his, 2) his assertion that
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the sentencing court inadequately instructed the jury on the government’s burden

to prove the prior convictions beyond a reasonable doubt, and 3) the sentencing

court’s reliance on a joint stipulation, to which appellant allegedly did not agree,

regarding evidence of the prior convictions. Finally, he contends trial counsel

was ineffective for stipulating to evidence about the prior convictions. 

After careful review of the record on appeal, together with appellant’s

arguments, and in light of the applicable law, we conclude that appellant has not

demonstrated his eligibility for a certificate of appealability. Therefore, for

substantially the same reasons contained in the magistrate judge’s report, dated

November 17, 1997, a copy of which is appended to this order and judgment,

appellant’s motion for a certificate of appealability is DENIED, and this appeal is

DISMISSED. 

Entered for the Court

Wade Brorby

Circuit Judge
Attachment not available electronically.