* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

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

### FEB 11 2003 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee,
v. SHAWN E. STEWART, Defendant - Appellant. No. 02-3253 D.C. No. 01-CV-3229-SAC and 98-CR-40097-SAC (D. Kansas)

ORDER AND JUDGMENT *
Before KELLY , McKAY , and MURPHY , Circuit Judges. ** Mr. Stewart seeks to appeal from the denial of his motion pursuant to 28 U.S.C. § 2255. Mr. Stewart pleaded guilty to six c ounts of robbery of facilities in interstate commerce, 18 U.S.C. § 1951, and two counts of use of a firearm in relation to a crime of violence, 18 U.S.C. § 924(c) (1). He was sentenced to 378 months of imprisonment, three years supervised rele ase and ordered to pay a- 2 -

special assessment of $800 and restitution of $10,2 37.10. We affirmed the judgment in United States v. Stewart , Nos. 99-3159 & 99-3270, 2000 WL 717086 (10th Cir. June 2, 2000). In his § 2255 motion, Mr . Stewart claims ineffective assistance of counsel and that he was denied due pr ocess when he was indicted and convicted for two offenses under § 1951 (counts 1 and 3) without any nexus to interstate commerce. He contends that the firearms counts (counts 2 and 4) are defective because they depend upon federal jurisdic tion over counts 1 and 3. On appeal from the denial of his § 2255 motion, he arg ues that he was denied his Fifth Amendment right to due process of law because he was convicted on a guilty plea that lacked a factual basis establishin g jurisdiction. Aplt. Br. at 22. In order for this court to grant a certificate of appealability (“COA”), Mr. Stewart must make a “substantial showing of the den ial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where the district court h as denied a claim on the merits, he must demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been r esolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quotations omitted). Where the district court has denied a claim on proc edural grounds, he must demonstrate “that jurists of reason would find it d ebatable whether the petition states a valid claim of the denial of a constitutio nal right and that jurists of reason- 3 -

would find it debatable whether the district court was correct in its procedural ruling.” Id. We have adhered to the view that only a potential e ffect on interstate commerce is necessary to satisfy the interstate commerce element of a § 1951(a) offense. United States v. Toles , 297 F.3d 959, 969 (10th Cir. 2002). With respect to the jurisdictional element, Mr. Stewart pleaded guilty unconditionally and as a matter of law he admitted all material facts charge d in the indictment, see United States v. Broce , 488 U.S. 563, 569 (1989), including all factual p redicates to jurisdiction, see United States v. Brown , 164 F.3d 518, 521-22 (10th Cir. 1998). For substantially the reasons given by the districtcourt, R. Doc. 78, we DENY a COA and DISMISS the appeal. We GRANT the motion to file Appendix I under seal. Entered for the Court Paul J. Kelly, Jr. Circuit Judge