Wetzel v. State of Utah

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 24 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
JON T. WETZEL,
Petitioner-Appellant,
No. 96-4081
v. (D.C. No. 94-CV-1112-S)
(D. Utah)
STATE OF UTAH,
Respondent-Appellee.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent except under the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.
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 presentence 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 death penalty, failure to allow
access to a presentence report does not violate a defendant's constitutional rights."
After reviewing Mr. Wetzel's rambling objections to the magistrate judge's report
and recommendation, the district court denied his petition 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 petition and
likewise no justification for an appeal of this court's denial of the
petition for a writ of habeas corpus. The issues raised are frivolous
and without substance. The issues raised by [Mr. Wetzel] in his
objection to the report and recommendation of the magistrate judge
were unintelligible and extraneous to those advanced in his original
petition.
We agree.
In his Application for a Certificate of Probable Cause in this court, Mr.
Wetzel argues he was denied equal protection of the law under the Fourteenth
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Amendment. 1 Apparently Mr. Wetzel is reiterating his contention that it was error
for him to be sentenced before his presentence report 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 contention is without merit.
We AFFIRM the district court's denial of a certificate of probable cause.
AFFIRMED.
Entered for the Court
WADE BRORBY
United States Circuit Judge
1
Mr. Wetzel also argues his sentence is unconstitutional because of an ex
post facto law. However, Mr. Wetzel did not properly raise this issue in the
district court. We do not consider issues that were not addressed to the district
court, absent compelling reasons not present in this 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.").
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