* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral 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 

### OCT 9 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

RAYMOND MICHAEL BERNAL,

Petitioner-Appellant,

v. RON LYTLE; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. No. 96-2280 (D.C. No. CIV 94-1294 HB/JHG)

(D. N.M.)

ORDER AND JUDGMENT *

Before TACHA, MCKAY, and BALDOCK, 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. There fore, appellant’s request for oral argument is denied, an d this case is ordered submitted without oral argument.1 Petitioner has moved this court for issuance of a c ertificate of appealability

to prosecute his appeal. Because he filed his habe as corpus petition on November 14, 1994, prior to the April 24, 1996 effective dat e of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), he doe s not need a certificate of appealability to proceed. See United States v. Kunzman , No. 96-1310, 1997 WL 602507, at *1 n.2 (10th Cir. Oct. 1, 1997). Theref ore, pursuant to the requirements of 28 U.S.C. § 2253 in effect at the t ime petitioner filed in the district court, we grant a certificate of probable cause and proceed to the merits of petitioner’s appeal. -2- Petitioner Raymond Michael Bernal appeals the distr ict court’s dismissal of his habeas corpus petition brought pursuant to 28 U .S.C. § 2254. 1 On appeal, petitioner asserts that his consecutive twelve-yearsentences for kidnaping and two counts of second degree criminal sexual penetration and his consecutive twelve-year sentences on the two counts of second d egree criminal sexual penetration violate the Double Jeopardy Clause of the Fifth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 2253, andwe affirm.

I. We will set forth here only those facts of this cas e pertinent to our disposition. During the early morning hours of Oct ober 7, 1985, petitioner was following his female victim on the road to Chama, N ew Mexico. After petitioner repeatedly flashed his lights behind her, the victi m pulled her car to the side of the road, and rolled down her window only four inch es. Petitioner approached her car, allegedly to inquire as to whether he was on the right road. When the-3-

victim turned to lower the volume on her car stereo , petitioner shoved his arm into the window opening and unlocked her car door. He entered the victim’s car, struggled with her for the car keys, which she mana ged to keep, and told her he wanted to “make love to her.” He then exited the c ar and attempted to remove her pants. She continued to struggle, so he hit her se veral times in the face and the head and threatened to get a gun from his truck andkill her. When he attempted to take the victim to his truck, she managed to break away and ran into the road in an attempt to flag do wn an approaching car. Petitioner caught her, shoved her into the side of her car and threw her into a mud puddle between the vehicles. He then pulled her to his truck and continued to hit her until she removed her pants and entered the tru ck. Once the victim was laying on the seat of the truck, petitioner got on top of her and raped her by putting his penis in her vagina. He then had oral sex with herby placing his tongue in her vagina. Following this act, he let her get up, and when she was outside the truck attempting to put on her clothes, he said, “Wait, I ’m not done,” and shoved her back into the truck where he raped her again by putting his penis in her vagina. After the third rape, while the victim was attempti ng to return to her car, petitioner grabbed her and asked if she had his tru ck keys. After ascertaining that she did not have the keys, he let her go. She retu rned to a Circle K store where she had previously asked directions of a police off icer, and reported the attack.-4-

Following a jury trial, at which petitioner present ed no defense, he was found guilty of two counts of second degree crimina l sexual penetration (with injury) (CSP II), one count of second degree kidnap ing (holding for service), one count of false imprisonment, and one count of assau lt with intent to commit a violent felony. Upon a finding of aggravating circ umstances, petitioner was sentenced to twelve years’ imprisonment on each CSP II count and on the kidnaping count to run consecutively. He was also sentenced to four years on the false imprisonment count and two years on the assau lt count to run concurrently, for a total of thirty-six years. His convictions w ere affirmed on direct appeal, and his state habeas corpus petition was denied. The N ew Mexico Supreme Court denied certiorari, and petitioner filed this action in federal court.

II. In reviewing the denial of petitioner’s federal hab eas corpus petition, we accept the district court’s findings of fact unless clearly erroneous, and we review the court’s conclusions of law de novo. See Matthews v. Price , 83 F.3d 328, 331 (10th Cir. 1996). The Double Jeopardy Clause of the Fifth Amendment p rotects against imposing multiple punishments for the same offense. See North Carolina v.
Pearce , 395 U.S. 711, 717 (1969). “With respect to cumul ative sentences-5-

imposed in a single trial, the Double Jeopardy Clau se does no more than prevent the sentencing court from prescribing greater punis hment than the legislature intended.” Missouri v. Hunter , 459 U.S. 359, 366 (1983). In determining whether a defendant’s acts constitute a single crim inal offense or separate criminal offenses for double jeopardy purposes, we defer to the state court’s interpretation of the relevant state statutes. See Brecheisen v. Mondragon , 833 F.2d 238, 240 (10th Cir. 1987). Initially, petitioner claims that his consecutive s entences for kidnaping and CSP II violate double jeopardy because his conduct was unitary, and there is no evidence that the New Mexico legislature intended m ultiple punishments for such unitary conduct. In recommending denial of petitio ner’s claim, the magistrate judge relied on Blockburger v. United States , 284 U.S. 299 (1932). In Blockburger , the Supreme Court held that “where the same act o r transaction constitutes a violation of two distinct statutory p rovisions, the test to be applied to determine whether there are two offenses or only on e is whether each provision requires proof of an additional fact which the othe r does not.” Id. at 304. Interpreting the Blockburgertest as “a canon of construction used to guide courts in deciphering legislative intent,” Swaffordv. State , 810 P.2d 1223, 1229 (N.M. 1991), the New Mexico Supreme Court formulate d a two-part test for determining legislative intent as to multiple punis hments, see id. at 1233-34.-6-

First, the court must inquire as to “whether the co nduct underlying the offenses is unitary, i.e., whether the same conduct violates bo th statutes.” Id. at 1233. If this question is answered in the negative, multiple puni shments would not violate the double jeopardy clause, and there is no need to pro ceed to the second prong of the
test. See id. at 1234. The second part of the test “asks whethe r the legislature intended multiple punishments for unitary conduct.” Id. New Mexico law defines criminal sexual penetration as “the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of pene tration, to any extent and with any object, of the genital or anal openings of anot her, whether or not there is any emission.” N.M. Stat. Ann. § 30-9-11(A). Here, pe titioner was charged with three counts of second degree criminal sexual penetration which, in this case, is unlawful criminal sexual penetration committed “in the commission of any other felony.” Id. § 30-9-11(D)(4). Kidnaping is defined as “the unl awful taking, restraining, transporting or confining of a person, by force, intimidation or deception with intent . . . that the victim be held to service against [her] will.” Id. § 30-4-1(A)(3). The New Mexico court has stated th at, absent “‘special circumstances’” requiring merger, “double jeopardy principles do not preclude multiple punishment for both CSP II, felony, and ki dnapping.” State v. Pisio , 889-7-

P.2d 860, 869 (N.M. Ct. App. 1994) (quoting State v . Tsethlikai , 785 P.2d 282, 285 (N.M. Ct. App. 1989)). Relying on State v. McGuire , 795 P.2d 996, 1000 (N.M. 1990), petitioner argues that, pursuant to the applicable criminal st atutes, it is possible for every act of criminal sexual penetration also to constitu te the act of kidnaping. In so doing, petitioner misrepresents and misapplies the New Mexico Supreme Court’s rationale and holding in McGuire , a case also addressing a defendant’s challenge to his consecutive sentences for kidnaping and CSP II. In McGuire , the defendant and his brother forced their way i nto the victim’s car. While his brother drove, the defendant forced the victim into the back seat, then bound, gagged, and raped her. The pair eventually drove the victim to an isolated spot where they murdered her. The court held that under the evidence presented, the jury could have found an in dependent factual basis for the two offenses, and therefore, the CSP II was not a l esser included offense of kidnaping. See id. at 1001-02. Here, it is clear that petitioner’s intent to kidnap the victim for the purpose of sexual service was formed at the time he initial ly restrained her in her car, announcing that he intended to make love to her. S ee McGuire , 795 P.2d at 1001 (“Once [petitioner] restrained the victim with the requisite intent to hold her for service against her will, he had committed the crim e of kidnaping . . . .”). This-8-

conclusion is not altered by the fact that the kidn aping continued throughout the subsequent struggles with the victim and the episod es of CSP II. See id. ; Brecheisen , 833 F.2d at 240-41 (holding that initial acts of battery were separate and distinct from the battery which occurred during the CSP offense). “[P]roof of the commission of one crime by evidence that proves commission of another may constitute double jeopardy only when, given the elements of each crime, the one crime could not hav e been committed without the commission of the other.” McGuire , 795 P.2d at 1001. Independent factual evidence was presented at trial to prove each of th e charges. The jury was at liberty to infer that the factual evidence presente d supported independent convictions and sentences. We conclude, therefore, that, because the conduct underlying the two crimes was not unitary, the firs t prong of the Swaffordtest has not been established, and petitioner’s convictions and consecutive sentences for those two crimes did not violate the constitution’s proscription against double jeopardy.

III. Next, petitioner argues that his constitutional rig ht to be free from double jeopardy was violated when he was sentenced to cons ecutive sentences for his convictions on the two charges of CSP II. Under Ne w Mexico law, “if the-9-

defendant commits two discrete acts violative of th e same statutory offense, but separated by sufficient indicia of distinctness, th en a court may impose separate, consecutive punishments for each offense.” Swaffor d , 810 P.2d at 1233; see also
Herron v. State , 805 P.2d 624, 628 (N.M. 1991) (the number of actu al criminal sexual penetrations is not dispositive of the numbe r of violations of section 30-9-11, “absent proof that each act of penetrationis in some sense distinct from the others”). In determining whether one act is di stinct from another, the court considers: (1) temporal proximity of penetrations (the greaterthe interval between acts the greater the likelihood of separate offenses); (2) location of the victim during each penetration (mov ement or repositioning of the victim between penetrations te nds to show separate offenses); (3) existence of an intervening event; (4) sequencing of penetrations (serial penetrations of different orifices, as opposed to repeated penetrations of the same ori fice, tend to establish separate offenses); (5) defendant’s intent as evidenced by his conduct and utterances; and (6) number of victi ms (although not relevant here, multiple victims will likely give ri se to multiple offenses). Id. At trial, the victim testified that once petitionerhad forced her into his truck, he raped her. Following the first vaginal p enetration with his penis, he performed oral sex on her, and then allowed her to exit the truck. While she was attempting to put her clothes on, petitioner shoute d, “Wait! I’m not done,” at which point he forced her back into the truck and c ommitted another penile2 According to the victim’s testimony at trial the tw o offenses were also

separated by the intervening act of oral sex. The nurse attending the victim at the hospital following the attack testified, however, t hat the victim told her the petitioner had not performed oral sex on her. Cons equently, although charged with three counts of CSP II, petitioner was only co nvicted of the two counts involving penile penetration. -10- penetration of her vagina. The magistrate judge fo und these intervening events sufficient to support separate convictions and sent ences for each offense. We
agree. The two offenses were separated by the intervening act of petitioner’s release of the victim. 2 Following the apparent release, petitioner forcedthe victim back into the truck thereby repositioning he r prior to the second penile penetration. Petitioner’s conduct in allowing the victim to exit the truck and begin to dress and his subsequent command to her to “Wait, I’m not done,” also served to separate the two offenses into distinct a cts. Therefore, applying the
Herronfactors, we conclude that the conduct surrounding the first CSP II charge was sufficiently distinct from the conduct surround ing the second CSP II charge to support separate convictions and consecutive sentences. The conduct was not unitary, and double jeopardy was not violated-11-

The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court Deanell Reece Tacha Circuit Judge