* This order and judgment is not binding precedent except under the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

### MAR 5 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT
ROBERT ALLEN WARD, Petitioner-Appellant,
v. JOE WILLIAMS, Warden, and ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents-Appellees. No. 97-2041 (D.C. No. CIV-96-470-LH) (D. N.M.)

ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY , 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.1 In a separate motion to the court, Mr. Ward has r equested oral argument.

Mr. Ward's motion is denied.

2The district court denied Mr. Ward's motion for acertificate of appealability on March 24, 1997. This court subseq uently held the certificate of appealability requirement of the Antiterrorism and Effective Death Penalty Act of 1996 applied only to § 2254 petitions filed in the district court after the April 24, 1996 effective date of the Act. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Since Mr. Ward's petiti on was filed in the district court on April 9, 1996, no certificate of appealabi lity is required. Therefore, we construe Mr. Ward's appeal as a request for a certi ficate of probable cause. See Hernandez v. Starbuck, 69 F.3d 1089, 1090 n.1 (10th Cir. 1995), cert. denied, 116 S. Ct. 1855 (1996). A certificate of probable caus e will be granted only if petitioner makes "a substantial showing of the deni al of an important federal right by demonstrating that the issues raised are debatab le among jurists, that a court could resolve the issues differently, or that the q uestions deserve further proceedings." Gallagher v. Hannigan , 24 F.3d 68, 68 (10th Cir. 1994). Having reviewed the record in this case, we conclude Mr. W ard has made the required substantial showing of the denial of a federal righ t, hence, we now issue a certificate of probable cause.
-2- Robert Allen Ward, appearing pro se , appeals from an order of the United States District Court for the District of New Mexic o dismissing with prejudice his petition for writ of habeas corpus under 28 U.S.C. § 2254. 1 We review the distirct court's dismissl of a habeas petition de novo
. Bradshaw v. Story , 86 F.3d 164, 166 (10th Cir. 1996). We have concluded the s entencing issues raised in Mr. Ward's petition cannot be decided on the basis of the existing appellate record. 2 Therefore, we vacate the decision of the district c ourt and remand the case for an evidentiary hearing to develop the record.3 The sentences imposed in CR-91-103-1 and the othe r seven causes were

to run consecutive to the sentence previously impos ed in cause number C-90-035- 1, a juvenile matter captioned In the Matter of Robert Ward, a Child, San Juan County District Court, Division I.
-3- Background From approximately November 1990 through February 1 991, Mr. Ward committed a variety of felonies under New Mexico st ate law. On September 13, 1991, the Eleventh Judicial District Court entered judgment and sentence in State v. Ward , Nos. CR-91-103-1 (commercial burglary et. al. ), CR-91-326-1 (commercial burglary), CR-91-327-1 (residential bur glary), CR-91-328-1 (receiving stolen property), CR-91-329-1 (escape fr om jail), CR-91-330-1 (auto burglary), CR-91-331-1 (residential burglary), CR-9 1-198-3 (trafficking in controlled substances). The aggregate sentence foreach of the eight causes was consecutive to the sentence for the preceding cause. 3
Two of the eight causes, CR-91-103-1 and CR-91-326- 1, contained multiple counts. Cause CR-91-103-1 covered eight counts. T he sentencing order under CR-91-103-1 sentenced Mr. Ward to eighteen months i mprisonment on each count, concurrent with the preceding count. Cause CR-91-326-1 covered three counts of commercial burglary, and again provided f or concurrent sentences on those counts.-4-

According to the handwritten notation of the senten cing judge, the court was under the impression the "gross effect" of the sentence was 36 years, 364 days imprisonment, the exposure created if all term s on all counts within the same cause number ran consecutively . However, by its terms, the sentencing order provided for a maximum exposure of 22.5 years, 364 days. (No periods of parole were specified in either the text of the first sent encing order or the judge's handwritten notations.) This discrepancy was not i mmediately noticed, presumably because Mr. Ward's term of imprisonment was suspended in favor of five years probation.
While on probation, Mr. Ward again found himself in some criminal difficulties. On December 14, 1992, the state dist rict court entered judgment and sentence on two counts in State v. Ward , No. CR-92-484-1. On count 1, distribution of marijuana to a minor, Mr. Ward was sentenced to three years imprisonment, enhanced by 1 year pursuant to a find ing that he was an habitual offender, for a total of four years. The term of i mprisonment was to be followed by 1 year of parole.
On what was designated count 3, felon in possessionof a firearm, Mr. Ward was sentenced to eighteen months imprisonment, followed by one year on-5-

parole. The sentencing order failed to specify whe ther the sentence on count 3 was concurrent with or consecutive to the sentence for count 1. The order did provide that the sentence imposed under CR-92-484-1 was to be served prior to the sentence in "cause number CR-91-103-1 et. al."
In the second part of its December 1992 order, the state district court revoked Mr. Ward's probation. In so doing, the cou rt sentenced Mr. Ward to twelve years of imprisonment followed by two years of parole. The order specified "the sentence imposed herein as to cause number CR-91-103-1 shall be served consecutively to the sentence imposed as to cause number CR-92-484-1." The court further ordered "the sentences imposed in CR-91-326-1, CR-91-327-1, CR-91-328-1, CR-91-329-1, CR 91-330-1, CR-91-331-1, and CR-91-198-3 ... shall remain the same."
The December 1992 sentencing order did not state explicitly the cumulative sentence the court intended Mr. Ward to serve.
On June 8, 1994, Mr. Ward ostensibly submitted a pro se petition for a writ of habeas corpus to the state district court, seeki ng to correct alleged sentencing errors. The status and disposition of this petitio n is unclear from the available-6-

record.
On June 27, 1995, Mr. Ward filed a second pro se habeas petition with the state district court requesting that his sentence b e corrected. In this petition, Mr. Ward pointed out that the state district court orde r revoking his probation had imposed a twelve-year term of imprisonment under CR -91-103-1, but the maximum term available under that cause number was eighteen months. He further indicated the terms imposed under CR-92-484 -1 should run concurrently since the sentencing order did not specify the sent ences should run consecutively.
On September 8, 1995, Mr. Ward filed a pro se petition for a writ of mandamus to the New Mexico Supreme Court seeking to compel the state district court to rule on his habeas petition.
On October 13, 1995, the sentencing court filed a m inute entry explaining that there had been a sentencing error due to "the sheer volume of [Mr. Ward's] criminal activity," but everyone, including Mr. War d and his attorneys, knew the intended term of imprisonment was twelve years and there was ample exposure in the September 1991 sentencing order to support the intended sentence. Contemporaneously, the court filed a corrected judg ment and sentence order.-7-

The corrected judgment and sentence order made no c hanges as to CR-92- 484-1. Mr. Ward's concern as to whether the senten ces on counts 1 and 3 were concurrent was not addressed. By way of correction , the October 1995 order drew the twelve-year term of imprisonment imposed f ollowing revocation of Mr. Ward's probation from seven of the eight causes add ressed by the September 1991 order. The state district court then proceeded to sentence Mr. Ward to two years parole pursuant to his sentence under CR 91-331-1. However, the original September 1991 sentencing order for CR-91-331-1 didnot specify a parole period, nor did any of the other causes covered by the written order.
After entering the corrective order, the state dist rict court denied Mr. Ward's habeas petition. Mr. Ward's appeal to the s tate court of appeals was dismissed and his petition for writ of certiorari t o the New Mexico Supreme Court was denied.
Having exhausted available state remedies, Mr. Ward filed a habeas petition with the United States District Court. Mr . Ward asserted three grounds for relief. First, he alleged his concurrent sente nces for the multiple counts under CS-91-103-1 were changed illegally into consecutive sentences after his sentence had begun. Second, he alleged his sentences as to counts 1 and 3 of CR-92-484-1-8-

must be presumed to be concurrent since the sentenc es were not designated consecutive in the December 1992 sentencing order. Finally, he alleged his parole period under CR-91-103-1 had been impermissi bly extended from one year to two.
After considering the record, but apparently without an evidentiary hearing, the magistrate judge concluded Mr. Ward's sentences were within the legislatively prescribed limits for the charged offenses, and that Mr. Ward had shown no procedural problems in light of the state district court's explanation of the sentencing error and its correction. The federal d istrict court adopted the magistrate judge's rather sparse findings and recom mendation, over Mr. Ward's objections, and dismissed the habeas petition with prejudice.

Discussion In a somewhat confusing brief to this court, Mr. Wa rd appears to assert five issues. First, Mr. Ward claims the state district court impermissibly increased his sentence when it corrected his sentence. Second, h e argues the sentences on the two counts under CR-92-484-1 should be presumed to run concurrently. Third, Mr. Ward claims the state district court impermissi bly imposed a two-year parole period pursuant to CR-91-103-1. Fourth, he now contends the habitual offender4The record indicates Mr. Ward's sentencing hearin gs were tape recorded.

5 In view of this decision, Mr. Ward's motion for ahearing before this court is denied.
-9- enhancement and the felon in possession charge unde r CR-92-484-1 impermissibly double count his prior felony. Final ly, he alleges the state district court impermissibly imposed an additional five-yearprobation period when it corrected his sentence.
Mr. Ward's petition appears facially to raise a cla im under the Double Jeopardy Clause of the United States Constitution. See U.S. Const. amend. V. While the federal district court appears to have fo und Mr. Ward's sentences have not been impermissibly lengthened, we are unsure of the record source of this finding. Given our uncertainty, we decline to reso lve this case on the merits at this stage. We would prefer that the federal distr ict court conduct an evidentiary hearing to determine the exact parameters of the se ntences imposed by the state district court. 4 Accordingly, we VACATE the judgment of the district court and REMAND for further proceedings. 5-10- Entered for the Court
WADE BRORBY United States Circuit Judge