* This order and judgment is not binding precedent, except under the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

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 Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.
1 The Supreme Court recently held that the new provisions of Chapter 153 of

Title 28 of the United States Code, which includes § 2253(c) requiring certificates

of appealability, added by the Antiterrorism and Effective 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 extent that Lennox held that

§ 2253(c) applied to habeas petitions filed prior to 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 petition in this case was filed prior

to that date, petitioner is not subject to AEDPA, but he is subject to § 2253's

previous requirement that he obtain a certificate of probable cause to appeal. 

Regardless of which label applies, petitioner’s substantive burden is the same. As

we held in Lennox, both certificates of probable cause and of appealability

require that a petitioner “make a substantial showing 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 and 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 one for probable cause,1 deny the

application and dismiss the appeal.

In June 1989, while on parole from a sentence for murder, petitioner was

convicted of attempted first-degree sexual assault and sentenced to eight to

twenty-five years in prison. His double jeopardy claim 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 sentence. 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 constitutional right to be free from double

jeopardy was violated as follows:

Prison Officials and members of the Board of Pardons 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, 1989, and place it

as a detainer upon completion of the prior conviction which was

never properly disposed of until November 1, 1989.

Petitioner’s Br. at 8.

The double jeopardy clause protects against both multiple 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 jeopardy claim involves neither

of these concerns; that is, he is not being prosecuted or punished more than once

for any offense. At most, petitioner is complaining 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 review. See, e.g., Bloyer v.

Peters, 5 F.3d 1093, 1100 (7th Cir. 1993); Handley v. Page, 398 F.2d 351, 352

(10th Cir. 1968).
-4-

The cases petitioner relies on are irrelevant to his claim. In United States

v. Villano, 816 F.2d 1448, 1450 (10th Cir. 1987), we reaffirmed that under

federal criminal law an orally pronounced sentence controls 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 established 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 substantial showing of the

denial of a federal constitutional right. Therefore, petitioner’s request for a

certificate of probable cause is DENIED, and the appeal is DISMISSED. The

mandate shall issue forthwith.

Entered for the Court

Stephen H. Anderson

Circuit Judge