* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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 18 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JEREMIAH ORDONEZ, Petitioner-Appellant, v. LAWRENCE A. TAFOYA and THE ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents-Appellees. No. 01-2079 (D.C. No. CIV-00-736-JC/DJS)

(D. N.M.)

ORDER AND JUDGMENT *

Before EBEL , KELLY and LUCERO , Circuit Judges.
Petitioner-Appellant Jeremiah Ordonez (“Ordonez”) f iled a Petition for a Writ of Habeas Corpus (“Petition”) pursuant to 28 U .S.C. § 2254 in the United States District Court for the District of New Mexic o on May 19, 2000. (See Doc. 1.) In his Petition, Ordonez argued that his state convictions for Armed Robbery- 2 -

and Conspiracy to Commit Armed Robbery, which arose from a single criminal incident: (1) violated Double Jeopardy under Blockb urger v. United States , 284 U.S. 299, 304 (1932); (2) were not supported by suf ficient evidence of guilt; and (3) were tainted by an error in the jury instructio ns offered at Ordonez’s trial. (See id. at 3.) The Petition was assigned to a United States Magist rate Judge who, in an Order dated February 13, 2001, recommended the Peti tion be dismissed. (See Doc. 13.) The Magistrate Judge found: (1) each cri me, Armed Robbery and Conspiracy to Commit Armed Robbery, required proof of an element that the other crime did not, and thus Ordonez’s convictions on both charges did not violate Double Jeopardy under Blockburger ; (2) the evidence, which included eye witness identification of Ordonez and stolen property found in Ordonez’s possession immediately following the robbery, was s ufficient to support Ordonez’s conviction; and (3) the error in the jury instructions did not render Ordonez’s trial fundamentally unfair. (See id. at 2-6.) Over Ordonez’s objection (see Doc. 14), the District Court adopted the Magistrat e Judge’s findings and dismissed Ordonez’s Petition on February 28, 2001. (See Doc. 16.) Ordonez filed Notice of Appeal on March 9, 2001. ( See Doc. 17.) On Match 19, 2001, the District Court denied Ordonez’s request for a certificate of appealability (“COA”). (See Doc. 18.)1 Because the Petition was filed after April 24, 19 96, the effective date of

the AEDPA, AEDPA’s provisions apply to this case. See, e.g. , Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999) (citing Li ndh v. Murphy , 521 U.S. 320, 336 (1997)). - 3 - Under the provisions of the Antiterrorism and Effec tive Death Penalty Act (“AEDPA”), 1 a state prisoner appealing a district court’s deni al of habeas relief under § 2254 must obtain a COA before we may consid er the merits of his claim. See 28 U.S.C. § 2253(c)(1)(A), (B). A court may issue a COA “only if the applicant has made a substantial showing of a denia l of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Because the District Court denied Ordonez’s request for a COA, we must first decide whether to issue th e requested COA before we may address his claims on the merits. See United States v. Simmonds , 111 F.3d 737, 740-41 (10th Cir. 1997). For substantially the same reasons as those relied upon by the District Court to dismiss Ordonez’s Petition, we find that O rdonez has not made a “substantial showing of a denial of a constitutiona l right” and thus that COA must be denied. This appeal is DISMISSED. ENTERED FOR THE COURT

David M. Ebel Circuit Judge