*

 This order and judgment is not binding precedent, except under the

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

** After examining the briefs and the appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The case is therefore ordered submitted 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 counts 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 release and ordered to pay a
- 2 -

special assessment of $800 and restitution of $10,237.10. 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 process 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 jurisdiction over counts 1 and 3. On

appeal from the denial of his § 2255 motion, he argues 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 establishing 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 denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). Where the district court has 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 resolved 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 procedural grounds, he must

demonstrate “that jurists of reason would find it debatable whether the petition

states a valid claim of the denial of a constitutional 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 effect 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 charged in the indictment, see United

States v. Broce, 488 U.S. 563, 569 (1989), including all factual predicates to

jurisdiction, see United States v. Brown, 164 F.3d 518, 521-22 (10th Cir. 1998). 

For substantially the reasons given by the district court, 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