* This order and judgment is not binding precedent, except under the doctrines of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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 8 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL SENA,

Petitioner - Appellant, No. 98-2050

v. (D. New Mexico) RONALD L. LYTLE; ATTORNEY GENERAL STATE OF NEW MEXICO, Respondents - Appellees. (D.C. No. CIV-97-101-BB/WWD)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , 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 ase is therefore ordered submitted without oral argument.-2-

Paul Sena seeks a certificate of appealability, see 28 U.S.C. § 2253(c), that would enable him to appeal the denial of his 28 U.S .C. § 2254 habeas petition, in which he sought relief from his New Mexico convict ions for second degree murder and aggravated assault. We deny the certifi cate of appealability and dismiss the appeal. A New Mexico grand jury issued a three-count indictment against Mr. Sena, charging him with first degree murder with a firearm enhancement and attempted first degree murder with a firearm enhanc ement, in violation of N.M. Stat. Ann. §§ 30-2-1A(1), 30-2-1A(2) and 31-18-16, and tampering with evidence, in violation of N.M. Stat. Ann. § 30-22-5. Pursuant to a plea agreement, Mr. Sena pleaded guilty to second degree murder and agg ravated assault. He was sentenced to nine years for the second degree murde r conviction, one and one-half years for the aggravated assault conviction, and on e year each for the firearm enhancements, all to run consecutively. The court suspended one year of the sentence, resulting in a total sentence of eleven a nd one-half years, followed by two years of parole. After exhausting state remedies, Mr. Sena brought this habeas action, alleging (1) that his guilty plea “violated due pro cess because it had no factual basis and that the plea was invalid due to ineffect ive assistance of counsel because defense counsel had unreasonably failed to discover and inform him that-3-

there was no factual basis for his plea,” Appellant ’s Br. at 9; (2) that a violation of due process and double jeopardy occurred when ea ch count was enhanced by the use of the same firearm; and (3) that the impos ition of consecutive sentences violated due process. The magistrate judge examine d the merits of those arguments and rejected them. The district court ad opted the magistrate judge’s recommendation and dismissed the petition with prej udice. Mr. Sena makes the identical three arguments in thi s appeal. To obtain a certificate of appealability, a petitioner must mak e a substantial showing of the denial of a federal right. See Nguyen v. Reynolds , 131 F.3d 1340, 1345 (10th Cir. 1997). After careful consideration of the record and the parties’ arguments, we DENY Mr. Sena’s application for a certificate of ap pealability for substantially the reasons stated by the magistrate judge in his r eport and recommendation, dated November 25, 1997, and adopted by the distric t court on January 21, 1998. We therefore DISMISS this appeal.
ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge