This order is not binding precedent except under the doctrines of law of the *

case, res judicata and collateral estoppel. It may be cited, however, for its

persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th

Cir. R. 32.1 (eff. Jan. 1, 2007).

F I LED

United States Court of Appeals

Tenth Circuit

December 14, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BENJAMIN ROMERO,

Petitioner-Appellant, No. 06-2186

v. District of New Mexico

JAMES JANECKA, Warden,

Respondent-Appellee.

(D.C. No. CIV-06-68 MCA/RLP)

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.

Benjamin Romero, a state prisoner proceeding pro se, seeks a certificate of

appealability (COA) that would allow him to appeal from the district court’s order

denying his habeas corpus petition under 28 U.S.C. § 2254. See 28 U.S.C. §

2253(c)(1)(A). Because we conclude that Mr. Romero has failed to make “a

substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2). 
-2-

Background

On February 12, 1998, a New Mexico state court sentenced Benjamin

Romero to a total of fifteen years incarceration for convictions on four counts in

connection with a burglary. The court suspended his sentence and imposed a

three year probationary period. Prior to sentencing, Mr. Romero signed a plea

agreement in which he agreed that if he violated the terms of his probation, his

probation would be revoked and his sentence would be subject to habitual

offender enhancements. After he violated his probation, the court revoked his

suspended sentence and imposed an eighteen year prison sentence based on

habitual offender enhancements, with eight years of the sentence suspended and

with credit for time served. After serving five years of the enhanced sentence,

Mr. Romero was released on probation, which he again violated. The court

revoked his probation and reinstated his eighteen year sentence with credit for

time served. 

In New Mexico state court, Mr. Romero filed a Motion for Amended

Judgment-Sentence and for an Order of Discharge on the grounds that the

reinstatement of his sentence constituted an improper double penalty. After the

court rejected his claims, he filed this habeas petition in the United States District

Court for the District of New Mexico. He argues that his sentence violates the

Double Jeopardy and Due Process protections of the United States Constitution. 
-3-

The Magistrate Judge found that Mr. Romero’s argument raised only matters of

state law and that neither due process nor the prohibition against double jeopardy

was implicated in Mr. Romero’s sentence. The district court adopted the

findings of the magistrate judge and dismissed the petition. 

Discussion

A prisoner may appeal the denial of a motion for relief under 28 U.S.C. §

2254 only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . the petition should have been resolved in a different

manner or that the issues presented were adequate to deserve encouragement to

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted). 

“[I]t is not the province of federal habeas court to reexamine state-court

determinations on state-law questions. In conducting habeas review, a federal

court is limited to deciding whether a conviction violated the Constitution, laws,

or treaties of the United States.” Estelle v. McGuire, 502 U.S. 62, 67 (1991). Mr.

Romero has grounds for his habeas petition only if the New Mexico court violated
-4-

the federal constitution when it applied the sentencing enhancements under New

Mexico law. 

Mr. Romero argues that his enhanced sentence violated the Double

Jeopardy Clause. We have held, however, that “[b]ecause sentences enhanced

under the habitual offender statutes are not punishment for the prior offense, they

do not normally raise double jeopardy issues.” Yparrea v. Dorsey, 64 F.3d 577,

579 (10th Cir. 1995). Mr. Romero does not put forth any argument to suggest

that New Mexico’s sentencing enhancement law differs from those previously

held constitutional.

Mr. Romero also argues that the New Mexico court violated his right to due

process. The Due Process Clause of the Fourteenth Amendment prohibits state

courts from depriving persons of life, liberty, or property except in accordance

with law and established legal procedures. Under New Mexico law, sentencing

enhancements may be applied until the defendant has served his entire sentence,

including parole. State v. Roybal, 903 P.2d 249, 252 (N.M. 1995). Mr. Romero

had not completed his probation at the time the sentencing enhancements were

applied. Since the sentencing enhancements were authorized under a state law

that does not violate the federal Constitution, the New Mexico court did not

violate Mr. Romero’s federal due process rights by applying them.
-5-

Because we find that reasonable jurists could not debate whether Mr.

Romero’s petition should have been resolved in a different manner, we DENY

Mr. Romero’s request for a COA and DISMISS this appeal.

Entered for the Court,

Michael W. McConnell

Circuit Judge