Sena v. Williams , 8 F. App'x 884 ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS MAR 23 2001
TENTH CIRCUIT PATRICK FISHER
Clerk
MICHAEL SENA,
Petitioner-Appellant,
v.
No. 00-2241
(D.C. No. CIV-00-572-LH/LFG)
JOE R. WILLIAMS, Warden, Lea
(New Mexico)
County Correctional Facility;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR, EBEL, and BRISCOE, Circuit Judges.
Michael Sena appeals from the district court’s dismissal, sua sponte, of his
petition for a writ of habeas corpus. For the reasons stated below, we deny Mr.
Sena’s applications to proceed in forma pauperis and for a certificate of
*
After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially 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 submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
appealability, and we dismiss the appeal.
Mr. Sena pled guilty in state court to two counts of trafficking in heroin
and one count of trafficking in cocaine. He also admitted that he had three prior
felony convictions. He was sentenced by the court to fifteen years in prison, nine
years for the current offenses plus an eight-year habitual offender enhancement,
with two years unconditionally suspended. Mr. Sena chose not to directly appeal
his plea bargain, but he filed a state habeas corpus petition for post-conviction
relief. In that petition, Mr. Sena contended this sentence violated the terms of his
plea agreement. That plea agreement stated Mr. Sena would admit the three prior
felonies, the district attorney would file “any applicable habitual criminal charge
permitted by New Mexico law,” and the district attorney would recommend that
Mr. Sena be sentenced to between eight and fifteen years in prison. Rec. Vol. 1,
Doc. 1, attachment 1. The state court examining Mr. Sena’s habeas case held that
“the sentence imposed comports with the limitations of the plea agreement and
does not violate the plea agreement” and dismissed his petition accordingly. Id.
Mr. Sena then filed an application for a writ of habeas corpus in federal
district court. He made the same argument in the federal habeas proceeding as he
made in the state proceeding – that the habitual offender enhancement of his
sentence violated his plea bargain. Mr. Sena made no argument that federal law
had been misapplied nor that an unreasonable factual determination had been
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made by the state court, as 28 U.S.C. § 2254(d)(1) and (2) require. Therefore, the
district court concluded that Mr. Sena’s petition simply attempted impermissibly
to relitigate a state postconviction proceeding and presented no federal grounds
for relief. Rec. Vol. 1, Doc. 4 at 2.
On appeal, Mr. Sena again presents no basis for federal relief. First, he
reasserts arguments made below and in state court regarding his sentence
enhancement, which, as the district court rightly held, does not meet the
requirements for federal habeas review. Second, he argues that the dismissal of
his petition sua sponte by a district court judge other than the one originally
assigned to the case violates his due process rights. This circuit has consistently
held, in accordance with federal law and rules of procedure, that “‘Each judge of
a multi-district court has the same power and authority as each other judge . . . .
Moreover, the District Judges have the inherent power to transfer cases from one
to another for the expeditious administration of justice.’" United States v. Diaz,
189 F.3d 1239, 1244 (10th Cir. 1999)(internal quotations and citations omitted).
To proceed in forma pauperis on appeal, an appellant must demonstrate “a
financial inability to pay the required filing fees and the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal.” Mr. Sena’s appeal is neither reasoned nor nonfrivolous in its arguments
and we therefore DENY his petition to proceed in forma pauperis. Similarly, in
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order to obtain a certificate of appealability, an appellant must make “a
substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). Mr. Sena has made no such showing and his request for a certificate
of appealability is DENIED. Accordingly, the appeal is hereby DISMISSED.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
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