* This order and judgment is not binding precedent, e xcept under the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 6 1997 

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

VINCENT A. APODACA,

Petitioner-Appellant,

v. JAMES FERGUSON, Warden, Wyoming State Penitentiary; WYOMING ATTORNEY GENERAL,

Respondents-Appellees. No. 96-8118 (D.C. No. 95-CV-250) (D. Wyo.)

ORDER AND JUDGMENT *

Before ANDERSON, BARRETT, and MURPHY, Circuit Judge s.

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.1 The Supreme Court recently held that the new provis ions of Chapter 153 of

Title 28 of the United States Code, which includes § 2253(c) requiring certificates of appealability, added by the Antiterrorism and Ef fective Death Penalty Act of 1996 (AEDPA) are generally not applicable to cases filed before AEDPA’s effective date, April 24, 1996. See Lindh v. Murphy , 117 S. Ct. 2059, 2068 (1997). Thus, Lennox v. Evans , 87 F.3d 431 (10th Cir. 1996), cert. denied , 117 S. Ct. 746 (1997), has been overruled to the extentthat Lennoxheld that § 2253(c) applied to habeas petitions filed prior t o AEDPA’s effective date. See United States v. Kunzman , No. 96-1310, 1997 WL 602507, at *1 n.2 (10th Cir. Oct. 1, 1997) (en banc). Because the habeas petiti on in this case was filed prior to that date, petitioner is not subject to AEDPA, b ut he is subject to § 2253's previous requirement that he obtain a certificate o f probable cause to appeal. Regardless of which label applies, petitioner’s sub stantive burden is the same. As we held in Lennox , both certificates of probable cause and of appeal ability require that a petitioner “make a substantial showi ng of the denial of a federal constitutional right.” 87 F.3d at 434. -2- Petitioner seeks leave to appeal from the district court’s decision adopting the magistrate judge’s report and recommendation an d dismissing his petition for a writ of habeas corpus based on a claim of double jeopardy. We construe his application for a certificate of appealability as o ne for probable cause, 1 deny the application and dismiss the appeal. In June 1989, while on parole from a sentence for m urder, petitioner was convicted of attempted first-degree sexual assault and sentenced to eight to twenty-five years in prison. His double jeopardy c laim stems from his contention that the trial judge ordered that he begin serving his sexual assault sentence immediately without determining how that conviction would affect his parole from the murder sentence. In November 1989, the parole board revoked his-3-

parole, and he returned to serving his murder sente nce. That sentence is now complete, and he is back to serving his sexual assault sentence, which was made consecutive to his murder sentence. See Apodaca v. State , 891 P.2d 83, 84-85 (Wyo. 1995). Petitioner claims that his constituti onal right to be free from double jeopardy was violated as follows: Prison Officials and members of the Board of Pardon s and Parole encroached upon the Judicial Powers of Judge Kalokathis [the judge who sentenced him for the attempted sexual assault] by stopping the service of the intervening sentence [for sexual assault] he imposed and (commenced) to begin running as of July 21, 198 9, and place it as a detainer upon completion of the priorconvictionwhich was neverproperly disposed of until November 1, 1989. Petitioner’s Br. at 8. The double jeopardy clause protects against both mu ltiple prosecutions and multiple punishments for the same offense. See, e. g. , Witte v. United States , 515 U.S. 389, 395-96 (1995). Petitioner’s double j eopardy claim involves neither of these concerns; that is, he is not being prosecu ted or punished more than once for any offense. At most, petitioner is complainin g about the order in which he is serving his sentences. Such sentencing matters are state law concerns that do not raise federal issues cognizable on federal habeas r eview. See, e.g. , Bloyer v. Peters , 5 F.3d 1093, 1100 (7th Cir. 1993); Handley v. Pag e , 398 F.2d 351, 352 (10th Cir. 1968).-4-

The cases petitioner relies on are irrelevant to hi s claim. In United States v. Villano , 816 F.2d 1448, 1450 (10th Cir. 1987), we reaffirm ed that under federal criminal law an orally pronounced sentence control s over a judgment and commitment order when the two conflict. Villano did not address the order in which sentences are served. In Mack v. McCune , 551 F.2d 251, 253 (10th Cir. 1977), we stated that it has been “definitively est ablished that the Parole Board is not required to execute a violator’s warrant until such time as the intervening sentence has been served.” We did not hold that a parole board is prohibited from doing so earlier. Neither of these cases supports petitioner’s contention that he has a federal constitutional right to the order in which he serves his sentences. We conclude that petitioner has failed to make a su bstantial showing of the denial of a federal constitutional right. Therefor e, petitioner’s request for a certificate of probable cause is DENIED, and the ap peal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Stephen H. Anderson Circuit Judge