* This order and judgment is not binding precedent, e xcept under the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

** Honorable John W. Lungstrum, District Judge, UnitedStates District Court for the District of Kansas, sitting by designation.

UNITED STATES COURT OF APPEALS Filed 11/6/96 FOR THE TENTH CIRCUIT
JOSE MARQUEZ,

Petitioner-Appellant,

v. DONALD A. DORSEY, Warden, Southern New Mexico Correctional Facility; ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Tom Udall, Respondents-Appellees. No. 96-2050 (D.C. No. CIV 93-1473 HB/JHG)

(D.N.M.)

ORDER AND JUDGMENT *

Before BALDOCK and BRISCOE, Circuit Judges, and LUN GSTRUM, ** District Judge.1 As the district court granted Mr. Marquez a certifi cate of probable cause

and permission to proceed in forma pauperis on appe al prior to the passage of the "Antiterrorism and Effective Death Penalty Act of 1 996," Pub. L. No. 104-132, 110 Stat. 1214, we conclude that the act does not apply to this appeal. See Edens v. Hannigan , 87 F.3d 1109, 1112 n.1 (10th Cir. 1996).
2 North Carolina v. Alford , 400 U.S. 25 (1970)(permitting acceptance of a guilty plea from a defendant who believes in his in nocence, if the plea is made knowingly, voluntarily, and intelligently, and is s upported by a strong factual basis). -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. Petitioner Jose Marquez appeals from an order of th e district court denying his petition for habeas corpus relief filed pursuan t to 28 U.S.C. § 2254. 1 We review the district court's legal conclusions in di smissing the petition de novo, Harvey v. Shillinger , 76 F.3d 1528, 1532 (10th Cir.), cert. denied ,117 S. Ct. 253 (1996), and affirm. Mr. Marquez entered Alford 2 guilty pleas to state charges contained in two separate indictments. In the first indictment he w as charged with (1) second degree murder, (2) possession of a firearm by a fel on, (3) unlawful carrying of a firearm into a licensed liquor establishment, and ( 4) tampering with the evidence. The second indictment charged Mr. Marquez with traf ficking in cocaine. The3 The state concedes that Mr. Marquez has exhausted h is state court remedies

as to this issue. -3- sentences imposed on counts one, three, and four of the first indictment were enhanced pursuant to New Mexico’s habitual offenderstatute. On appeal, Mr. Marquez challenges the enhancement o f his sentences. 3 We will not address Mr. Marquez’ argument to the exten t he asserts that the enhancement violated New Mexico statutes. "[I]t is not the province of a federal habeas court to reexamine state-court determination s on state-law questions." Estelle v. McGuire , 502 U.S. 62, 67-68 (1991). Mr. Marquez argues his double jeopardy rights were violated because his prior conviction was used to prove an element of th e charge of being a felon in possession of a firearm and for enhancing the otherthree charges. We do not agree. The Double Jeopardy Clause is violated when a person is tried again for the same offense after acquittal or conviction, and when a person is punished twice for the same offense. United States v. Dixon , 509 U.S. 688, 695-96 (1993). The state court correctly concluded that using Mr. Marquez’ prior conviction, both to establish an essential element of the crime of felon in possession of a firearm and to enhance the other th ree convictions, which did not require proof that Mr. Marquez was a felon, did notviolate double jeopardy. See State v. Handa , 897 P.2d 225, 233 (N.M. Ct. App.)(no double jeopardy violation-4-

where prior felony was used to establish felon in p ossession of a firearm conviction and to provide basis for enhancement of assault conviction), cert. denied , 895 P.2d 671 (N.M. 1995); State v. Yparrea , 845 P.2d 1259, 1261 (N.M. Ct. App. 1992)(no double jeopardy violation where p rior conviction for felon in possession of a firearm and the felony underlying t hat conviction were counted as separate crimes for enhancement of later conviction as the facts from the prior felonies were not used to prove commission of any o f the current felony charges), cert. denied , 845 P.2d 814 (N.M. 1993); see also Yparrea v. Dorsey , 64 F.3d 577, 578-79 (10th Cir. 1995)(affirming that no double je opardy violation occurs when prior conviction is used to establish element of fe lon in possession of a firearm conviction and later to enhance sentences for otherconvictions). The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge