* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral 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 

### MAR 24 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JON T. WETZEL, Petitioner-Appellant,

v. STATE OF UTAH, Respondent-Appellee. No. 96-4081 (D.C. No. 94-CV-1112-S) (D. Utah)

ORDER AND JUDGMENT *

Before BRORBY, EBEL and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Mr. Wetzel, a Utah state prisoner, is currently serving a life sentence for the murder of his wife. On November 16, 1994, Mr. Wetzel filed a petition for a writ of habeas corpus alleging he was denied equal protection of the law and due process when he was sentenced before the presentenc e report was completed. The magistrate judge recommended Mr. Wetzel's petition be denied on the grounds that "[i]n a case not involving imposition of the d eath penalty, failure to allow access to a presentence report does not violate a d efendant's constitutional rights." After reviewing Mr. Wetzel's rambling objections to the magistrate judge's report and recommendation, the district court denied his p etition for a writ of habeas corpus. Thereafter, the district court denied Mr. Wetzel's petition for a certificate of probable cause stating:

The court finds no merit to [Mr. Wetzel's] habeas p etition and likewise no justification for an appeal of this cou rt's denial of the petition for a writ of habeas corpus. The issues r aised are frivolous and without substance. The issues raised by [Mr. W etzel] in his objection to the report and recommendation of the m agistrate judge were unintelligible and extraneous to those advance d in his original petition. We agree.

In his Application for a Certificate of Probable Ca use in this court, Mr. Wetzel argues he was denied equal protection of the law under the Fourteenth1 Mr. Wetzel also argues his sentence is unconstitutional because of an ex

post facto law. However, Mr. Wetzel did not properly raise t his issue in the district court. We do not consider issues that wer e not addressed to the district court, absent compelling reasons not present in thi s case. Crow v. Shalala , 40 F.3d 323, 324 (10th Cir. 1994). See Singleton v. Wulff , 428 U.S. 106, 120 (1976) ("It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.").

-3- Amendment. 1 Apparently Mr. Wetzel is reiterating his contenti on that it was error for him to be sentenced before his presentence repo rt was completed. However, failure to disclose the presentence report prior to sentencing does not violate a defendant's right to due process, nor does it otherwise violate the Constitution or laws of the United States. See United States v. Ainesworth , 716 F.2d 769, 772 (10th Cir. 1983); United States v. Stidham , 459 F.2d 297, 299 (10th Cir.), cert. denied, 409 U.S. 868 (1972). Hence, Mr. Wetzel's content ion is without merit.

We AFFIRM the district court's denial of a certificate of pr obable cause.

AFFIRMED. Entered for the Court

WADE BRORBY United States Circuit Judge