Marquez v. Dorsey ( 1996 )

UNITED STATES COURT OF APPEALS
Filed 11/6/96
FOR THE TENTH CIRCUIT
JOSE MARQUEZ,
Petitioner-Appellant,
v. No. 96-2050
(D.C. No. CIV 93-1473 HB/JHG)
DONALD A. DORSEY, Warden, (D.N.M.)
Southern New Mexico Correctional
Facility; ATTORNEY GENERAL OF
THE STATE OF NEW MEXICO, Tom
Udall,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK and BRISCOE, Circuit Judges, and LUNGSTRUM, ** District
Judge.
*
This order and judgment is not binding precedent, except under the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.
**
Honorable John W. Lungstrum, District Judge, United States District Court
for the District of Kansas, sitting by designation.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
Petitioner Jose Marquez appeals from an order of the district court denying
his petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. 1 We
review the district court's legal conclusions in dismissing 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 was charged with (1) second
degree murder, (2) possession of a firearm by a felon, (3) unlawful carrying of a
firearm into a licensed liquor establishment, and (4) tampering with the evidence.
The second indictment charged Mr. Marquez with trafficking in cocaine. The
1
As the district court granted Mr. Marquez a certificate of probable cause
and permission to proceed in forma pauperis on appeal prior to the passage of the
"Antiterrorism and Effective Death Penalty Act of 1996," 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 innocence, if the plea is made
knowingly, voluntarily, and intelligently, and is supported by a strong factual
basis).
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sentences imposed on counts one, three, and four of the first indictment were
enhanced pursuant to New Mexico’s habitual offender statute.
On appeal, Mr. Marquez challenges the enhancement of his sentences. 3 We
will not address Mr. Marquez’ argument to the extent he asserts that the
enhancement violated New Mexico statutes. "[I]t is not the province of a federal
habeas court to reexamine state-court determinations 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 the charge of being a felon in
possession of a firearm and for enhancing the other three 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 three convictions, which did not
require proof that Mr. Marquez was a felon, did not violate double jeopardy. See
State v. Handa, 897 P.2d 225, 233 (N.M. Ct. App.)(no double jeopardy violation
3
The state concedes that Mr. Marquez has exhausted his state court remedies
as to this issue.
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where prior felony was used to establish felon in possession 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 prior conviction for felon in
possession of a firearm and the felony underlying that 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 of 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 jeopardy violation occurs when
prior conviction is used to establish element of felon in possession of a firearm
conviction and later to enhance sentences for other convictions).
The judgment of the United States District Court for the District of New
Mexico is AFFIRMED.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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