*

 This order and judgment is not binding precedent, except under the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

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 instant petition for habeas

corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the

Northern District of Oklahoma. In his petition, Smith argued the state of

Oklahoma was collaterally estopped from criminally prosecuting him for sexual

abuse of a child because the issue had already been adjudicated 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
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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 adjudication with respect to the collateral

estoppel issue (1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established federal law as determined by the

Supreme Court, or (2) was premised on an unreasonable determination of the facts

in light of the evidence presented in the state court proceedings. Applying this

standard, we must analyze Smith’s claim in light of the Supreme Court’s

collateral estoppel jurisprudence. Specifically, to determine the applicability of

the doctrine we must “examine the record of [the] prior proceeding, taking into

account the pleadings, evidence, charge and other relevant matter[s].” Ashe v.

Swenson, 397 U.S. 436, 444 (1970). In short, we must undertake a complete

record review. 

In reviewing Smith’s petition, the federal district court directed the State to

supplement the habeas record with a transcript and pleadings relevant to the

underlying state criminal case. In addition, the court directed supplementation

with the transcript from the civil juvenile proceeding. Unable to obtain all of the

desired documents, the court reviewed what was available and eventually denied

the petition on the merits. After oral argument in this case, we ordered the parties
1

 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 those 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 for transcription. On remand,

Smith must request transcription and supplement the record with all of the

relevant transcripts. 

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to supplement this record with the complete transcripts of the civil and criminal

proceedings. Following entry of that order, it became 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 review 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 for the Northern District of

Oklahoma is reversed, and this matter is remanded with instructions to the court

to undertake the applicable record review. After completing that review, the

court should consider the merits of Smith’s collateral estoppel claim.1 

Entered for the Court

Timothy M. Tymkovich

Circuit Judge