* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 19 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KIP ANTONIO SMITH,

Petitioner-Appellant, No. 04-5073
v. N.D. of Okla. STEVE BECK,

Respondent-Appellee. (D.C. No. CV-02-601-EA)

ORDER AND JUDGMENT *

Before TACHA , McKAY , and TYMKOVICH , Circuit Judges.
Petitioner-Appellant Kip Antonio Smith filed the in stant petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the United S tates District Court for the Northern District of Oklahoma. In his petition, Sm ith argued the state of Oklahoma was collaterally estopped from criminally prosecuting him for sexual abuse of a child because the issue had already beenadjudicated adversely to the State in an earlier civil juvenile proceeding. On October 20, 2004, we entered an order granting Smith’s request for a certificate of appealability with respect to the-2-

collateral estoppel issue. See 28 U.S.C. § 2253(c)(2). The court also appointed counsel under the Criminal Justice Act. See 18 U.S.C. § 3006A(a)(2)(B). Pursuant to 28 U.S.C. § 2254(d), Smith is entitled to habeas relief only if he can establish that the state court’s adjudicatio n with respect to the collateral estoppel issue (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established fe deral law as determined by the Supreme Court, or (2) was premised on an unreasonab le determination of the facts in light of the evidence presented in the state cou rt proceedings. Applying this standard, we must analyze Smith’s claim in light of the Supreme Court’s collateral estoppel jurisprudence. Specifically, t o determine the applicability of the doctrine we must “examine the record of [the] p rior proceeding, taking into account the pleadings, evidence, charge and other r elevant matter[s].” Ashe v. Swenson , 397 U.S. 436, 444 (1970). In short, we must unde rtake a complete record review. In reviewing Smith’s petition, the federal districtcourt directed the State to supplement the habeas record with a transcript and pleadings relevant to the underlying state criminal case. In addition, the c ourt directed supplementation with the transcript from the civil juvenile proceed ing. Unable to obtain all of the desired documents, the court reviewed what was avai lable and eventually denied the petition on the merits. After oral argument inthis case, we ordered the parties1 Specifically, the parties have transmitted to this court the transcript of the

state criminal proceeding and a partial transcript of the civil juvenile proceeding. The Clerk of this court is directed to include thos e materials with the original record when it is returned to the district court. In addition, we note the remainder of the civil proceeding is on tape and available fo r transcription. On remand, Smith must request transcription and supplement the record with all of the relevant transcripts. -3- to supplement this record with the complete transcr ipts of the civil and criminal proceedings. Following entry of that order, it bec ame clear all the relevant materials are available. Because review of the complete record is required under the applicable law, we have determined this matter must be remanded to the district court. In particular, the court should re view the materials in the first instance in light of the standard set forth in Ashe. See id. The decision of the United States District Court fo r the Northern District of Oklahoma is reversed, and this matter is remanded w ith instructions to the court to undertake the applicable record review. After c ompleting that review, the court should consider the merits of Smith’s collate ral estoppel claim. 1

Entered for the Court Timothy M. Tymkovich Circuit Judge