Serrano v. Williams

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 29, 2007
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
JERRY SERRANO,
Plaintiff–Appellant, No. 07-2019
v. (D.C. No. CIV-02-57 BB /RLP)
JOSEPH W ILLIA M S, W arden, (D .N.M .)
Defendant–Appellee.
OR DER *
Before BR ISC OE, M cKA Y, and M cCO NNELL, Circuit Judges.
Petitioner, a state prisoner represented by counsel, seeks a certificate of
appealability to appeal the district court’s denial of his § 2254 habeas petition.
To obtain a certificate of appealability, Petitioner must make a “substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2000).
In order to meet this burden, Petitioner 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. M cDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted).
*
This order is not binding precedent, except under the doctrines of law of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 and 10th Cir. R. 32.1.
Following a state jury trial, Petitioner was found guilty of aggravated
burglary, criminal sexual penetration, aggravated assault in disguise, conspiracy
to comm it armed robbery, and two counts of armed robbery. His sentence was
affirmed on direct appeal, and he was denied relief in state collateral proceedings.
Petitioner then filed the instant § 2254 habeas petition, which was initially
dismissed by the district court as time barred. On appeal, this court determined
that the petition was timely and therefore remanded the case to the district court
for further proceedings. Serrano v. Williams, 383 F.3d 1181 (10th Cir. 2004).
In his habeas petition, Petitioner claimed that (1) he received ineffective
assistance of counsel at trial, (2) his confrontation clause rights were violated, (3)
prosecutorial misconduct occurred prior to and during his trial, and (4) he
received multiple punishments for unitary conduct in violation of the double
jeopardy clause. On remand, the magistrate judge recommended that the petition
be dismissed. Specifically, the magistrate judge concluded that (1) Petitioner
failed to demonstrate ineffective assistance of counsel under the test set forth in
Strickland v. Washington, 466 U.S. 668, 687 (1984), (2) Petitioner failed to
provide any facts supporting the confrontation clause issue, (3) Petitioner failed
to demonstrate that any prosecutorial misconduct occurred, and (4) no double
jeopardy violation occurred because each statutory provision required proof of an
elem ent that the others did not and because Petitioner’s conduct involved two
victims and w as not unitary. After considering Petitioner’s objections to these
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conclusions and conducting a de novo review of the record, the district court
adopted the magistrate judge’s supplemental report and recommendation and
dismissed the case.
W e have carefully reviewed Petitioner’s brief, the magistrate judge’s initial
and supplemental report and recommendation, the district court’s disposition, and
the record on appeal. Nothing in these materials raises an issue which meets our
standard for the grant of a certificate of appealability. For substantially the
reasons set forth by the magistrate judge and adopted by the district court, we
D EN Y Petitioner’s request for a certificate of appealability and DISM ISS the
appeal.
Entered for the Court
M onroe G. M cKay
Circuit Judge
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