Romero v. Janecka , 209 F. App'x 746 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
December 14, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
B EN JA M IN RO M ER O,
Petitioner-A ppellant, No. 06-2186
v. District of New M exico
JAM ES JANECKA, W arden, (D.C. No. CIV-06-68 M CA /RLP)
Respondent-Appellee.
OR DER DENY ING CERTIFICATE O F APPEALABILITY *
Before M U RPH Y, SE YM OU R, and M cCO NNELL, Circuit Judges.
Benjamin Romero, a state prisoner proceeding pro se, seeks a certificate of
appealability (COA) that would allow him to appeal from the district court’s order
denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §
2253(c)(1)(A). Because w e conclude that M r. Romero has failed to make “a
substantial show ing of the denial of a constitutional right,” we deny his request
for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).
*
This order is not binding precedent except under the doctrines of law of the
case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th
Cir. R. 32.1 (eff. Jan. 1, 2007).
Background
On February 12, 1998, a N ew M exico state court sentenced Benjamin
Romero to a total of fifteen years incarceration for convictions on four counts in
connection with a burglary. The court suspended his sentence and imposed a
three year probationary period. Prior to sentencing, M r. Romero signed a plea
agreement in which he agreed that if he violated the terms of his probation, his
probation would be revoked and his sentence would be subject to habitual
offender enhancements. After he violated his probation, the court revoked his
suspended sentence and imposed an eighteen year prison sentence based on
habitual offender enhancements, with eight years of the sentence suspended and
with credit for time served. After serving five years of the enhanced sentence,
M r. Romero was released on probation, which he again violated. The court
revoked his probation and reinstated his eighteen year sentence with credit for
time served.
In New M exico state court, M r. Romero filed a M otion for Amended
Judgment-Sentence and for an Order of Discharge on the grounds that the
reinstatement of his sentence constituted an improper double penalty. After the
court rejected his claims, he filed this habeas petition in the United States District
Court for the District of New M exico. He argues that his sentence violates the
Double Jeopardy and Due Process protections of the United States Constitution.
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The M agistrate Judge found that M r. Romero’s argument raised only matters of
state law and that neither due process nor the prohibition against double jeopardy
was implicated in M r. Romero’s sentence. The district court adopted the
findings of the magistrate judge and dismissed the petition.
Discussion
A prisoner may appeal the denial of a motion for relief under 28 U.S.C. §
2254 only if the district court or this Court first issues a COA. 28 U.S.C. §
2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order
to make such a showing, a petitioner must demonstrate that “reasonable jurists
could debate whether . . . 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. M cDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks omitted).
“[I]t is not the province of federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas review, a federal
court is limited to deciding whether a conviction violated the Constitution, laws,
or treaties of the United States.” Estelle v. M cGuire, 502 U.S. 62, 67 (1991). M r.
Romero has grounds for his habeas petition only if the New M exico court violated
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the federal constitution when it applied the sentencing enhancements under New
M exico law.
M r. Romero argues that his enhanced sentence violated the Double
Jeopardy Clause. W e have held, however, that “[b]ecause sentences enhanced
under the habitual offender statutes are not punishment for the prior offense, they
do not normally raise double jeopardy issues.” Yparrea v. Dorsey, 64 F.3d 577,
579 (10th Cir. 1995). M r. Romero does not put forth any argument to suggest
that New M exico’s sentencing enhancement law differs from those previously
held constitutional.
M r. Romero also argues that the New M exico court violated his right to due
process. The Due Process Clause of the Fourteenth Amendment prohibits state
courts from depriving persons of life, liberty, or property except in accordance
with law and established legal procedures. Under New M exico law, sentencing
enhancements may be applied until the defendant has served his entire sentence,
including parole. State v. Roybal, 903 P.2d 249, 252 (N.M . 1995). M r. Romero
had not completed his probation at the time the sentencing enhancements were
applied. Since the sentencing enhancements were authorized under a state law
that does not violate the federal Constitution, the New M exico court did not
violate M r. Romero’s federal due process rights by applying them.
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Because w e find that reasonable jurists could not debate w hether M r.
Romero’s petition should have been resolved in a different manner, we DENY
M r. Romero’s request for a COA and DISM ISS this appeal.
Entered for the Court,
M ichael W . M cConnell
Circuit Judge
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