* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral 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 

### MAY 4 1998 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

NATHANIEL F. MURPHY, JR., Petitioner-Appellant,

v. JOHN SHANKS, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents-Appellees. No. 97-2218 (D.C. No. CIV 95-694-SC/RLP) (New Mexico)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY and BRISCOE , 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 ause is therefore ordered submitted without oral argument.1 Mr. Murphy filed his habeas petition in 1995, befo re the Antiterrorist and

Effective Death Penalty Act was signed into law on April 24, 1996. The new Act requires that a state habeas petitioner who wishes to appeal must obtain a certificate of appealability, which issues on a sub stantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c). We have held that the new Ac t does not apply to habeas petitions filed before the Act’s effective date. Edens v. Hannigan , 87 F.3d 1109, 1112 n.1 (10th Cir. 1996). Prior t o the Act, a state habeas petitioner who wished to appeal was requiredto obtain a certificate of probable cause, which in turn required the petition er to make a substantial showing of the denial of a federal right. See Lennox v. Evans , 87 F.3d 431, 433 (10th Cir. 1996). We therefore construe Mr. Murphy ’s request for a certificate of appealability as a request for a certificate of pro bable cause. -2- Nathaniel Murphy filed a request for habeas corpus relief under 28 U.S.C. § 2254, asserting that a plea agreement disposing of several state charges against him violated his constitutional rights with respectto the effective assistance of counsel and double jeopardy. The district court ad opted the report of the magistrate judge recommending that relief be denied . The court also denied Mr. Murphy’s request for a certificate of appealability , which we construe as a denial of a certificate of probable cause. 1 As we discuss briefly below, we likewise conclude that Mr. Murphy has failed to make the req uisite showing for a certificate of probable cause. Accordingly, we deny his application and dismiss his appeal. Mr. Murphy was charged in state court in Bernalillo County with multiple counts of burglary and forgery and two counts of re ceiving stolen goods. As a repeat offender, Mr. Murphy faced the possibility o f more than 190 years of-3-

incarceration if convicted of all the offenses. Up on advice of counsel, Mr. Murphy entered into a plea agreement under which he agreed to waive all constitutional defects and the State agreed to a se ntence cap of eleven years incarceration. Mr. Murphy received a sentence of n ineteen years, eight of which were suspended in accordance with the agreement. Mr. Murphy subsequently filed a state petition for habeas corpus relief, asserting that the plea agreement violated his doub le jeopardy rights because at the time he entered into the agreement he had alrea dy pled guilty in Sandoval County to a count of receiving the same stolen prop erty that was among the charges disposed of in the agreement. The state co urt agreed with Mr. Murphy and reduced his sentence from nineteen to seventeen -and-one-half years to reflect the deletion of the eighteen-month sentence for the duplicative charge, a fourth degree felony. The state court kept Mr. Murphy’s t erm of incarceration at eleven years, however, based on his extensive prior crimin al history, the very favorable plea bargain obtained by his counsel, and the fact that if Mr. Murphy had gone to trial as an habitual offender and been convicted, h e could have received a sentence of over 190 years. In his federal habeas petition, Mr. Murphy assertedthat the state court finding of a double jeopardy violation vitiated the entire plea agreement as a matter of state law. The magistrate judge pointed out that only federal-4-

constitutional claims are cognizable in an action u nder section 2254, and that because Mr. Murphy’s sentence was reduced to elimin ate the constitutionally impermissible multiple punishment resulting from th e double jeopardy violation, Mr. Murphy had already received the only constituti onal remedy to which he was entitled for that claim. Mr. Murphy also asserted that he received ineffecti ve assistance of counsel in the state court plea proceedings because his cou nsel had not discovered the prior plea in Sandoval County before Mr. Murphy ent ered into the agreement at issue here. The magistrate rejected this claim, ho lding that even if Mr. Murphy’s counsel had been ineffective in failing to discoverthe earlier plea, Mr. Murphy had failed to show prejudice from the failure. We agree. A defendant who seeks to challenge the validity of a guilty plea on the ground of ineffective assistance of counsel “must s how that there is a reasonable probability that, but for counsel’s errors, he woul d not have pleaded guilty and would have insisted on going to trial.” Hill v. Lo ckhart , 474 U.S. 52, 59 (1985). Mr. Murphy has failed to make such a showing. We f ind no reason to believe that Mr. Murphy would have insisted on going to trial to face a possible sentence of 188 years when he accepted a plea agreement to avoi d facing a possible sentence of 190 years. We likewise do not believe the elimi nation of the duplicative count would have led counsel to change her recommendationthat Mr. Murphy accept2 Mr. Murphy seeks an opportunity to renegotiate his plea as an alternative

to proceeding to trial. Even if we were inclined t o hold that the requisite prejudice could be established by showing a reasonable probability that the State would renegotiate and agree to a plea more favorabl e to Mr. Murphy, he cannot show such a reasonable probability given the state court’s conclusion that a reduction in Mr. Murphy’s already favorable term of incarceration was not warranted upon elimination of the duplicative charg e. -5- the plea. See id. at 59-60. Indeed, Mr. Murphy has not requested th at his plea be vacated so that he can proceed to trial, nor has he asserted that he would not have pled guilty and would have insisted on going to tri al. 2 We conclude that Mr. Murphy has failed to make a su bstantial showing of the denial of a constitutional right. We therefore DENY his application for a certificate of probable cause and DISMISS his appeal.
ENTERED FOR THE COURT
Stephanie K. Seymour Chief Judge