                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          MAY 4 1998

                                  TENTH CIRCUIT                     PATRICK FISHER
                                                                             Clerk



 NATHANIEL F. MURPHY, JR.,

          Petitioner-Appellant,

 v.                                                    No. 97-2218
                                              (D.C. No. CIV 95-694-SC/RLP)
 JOHN SHANKS, Warden;                                 (New Mexico)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Respondents-Appellees.




                         ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BRORBY and BRISCOE, Circuit Judges.



      After examining the briefs and 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); 10th Cir. R. 34.1.9. The cause is

therefore ordered 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       This order and judgment is not binding precedent, except under the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.
      Nathaniel Murphy filed a request for habeas corpus relief under 28 U.S.C. §

2254, asserting that a plea agreement disposing of several state charges against

him violated his constitutional rights with respect to the effective assistance of

counsel and double jeopardy. The district court adopted the report of the

magistrate judge recommending that relief be denied. The court also denied Mr.

Murphy’s request for a certificate of appealability, which we construe as a denial

of a certificate of probable cause. 1 As we discuss briefly below, we likewise

conclude that Mr. Murphy has failed to make the requisite showing for a

certificate of probable cause. Accordingly, we deny his application and dismiss

his appeal.

      Mr. Murphy was charged in state court in Bernalillo County with multiple

counts of burglary and forgery and two counts of receiving stolen goods. As a

repeat offender, Mr. Murphy faced the possibility of more than 190 years of



      1
         Mr. Murphy filed his habeas petition in 1995, before the Antiterrorist and
Effective Death Penalty Act was signed into law on April 24, 1996. The new Act
requires that a state habeas petitioner who wishes to appeal must obtain a
certificate of appealability, which issues on a substantial showing of the denial of
a constitutional right. See 28 U.S.C. § 2253(c). We have held that the new Act
does not apply to habeas petitions filed before the Act’s effective date. Edens v.
Hannigan, 87 F.3d 1109, 1112 n.1 (10th Cir. 1996). Prior to the Act, a state
habeas petitioner who wished to appeal was required to obtain a certificate of
probable cause, which in turn required the petitioner to make a substantial
showing of the denial of a federal right. See Lennox v. Evans, 87 F.3d 431, 433
(10th Cir. 1996). We therefore construe Mr. Murphy’s request for a certificate of
appealability as a request for a certificate of probable cause.

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incarceration if convicted of all the offenses. Upon advice of counsel, Mr.

Murphy entered into a plea agreement under which he agreed to waive all

constitutional defects and the State agreed to a sentence cap of eleven years

incarceration. Mr. Murphy received a sentence of nineteen years, eight of which

were suspended in accordance with the agreement.

      Mr. Murphy subsequently filed a state petition for habeas corpus relief,

asserting that the plea agreement violated his double jeopardy rights because at

the time he entered into the agreement he had already pled guilty in Sandoval

County to a count of receiving the same stolen property that was among the

charges disposed of in the agreement. The state court agreed with Mr. Murphy

and reduced his sentence from nineteen to seventeen-and-one-half years to reflect

the deletion of the eighteen-month sentence for the duplicative charge, a fourth

degree felony. The state court kept Mr. Murphy’s term of incarceration at eleven

years, however, based on his extensive prior criminal history, the very favorable

plea bargain obtained by his counsel, and the fact that if Mr. Murphy had gone to

trial as an habitual offender and been convicted, he could have received a

sentence of over 190 years.

      In his federal habeas petition, Mr. Murphy asserted that the state court

finding of a double jeopardy violation vitiated the entire plea agreement as a

matter of state law. The magistrate judge pointed out that only federal


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constitutional claims are cognizable in an action under section 2254, and that

because Mr. Murphy’s sentence was reduced to eliminate the constitutionally

impermissible multiple punishment resulting from the double jeopardy violation,

Mr. Murphy had already received the only constitutional remedy to which he was

entitled for that claim.

      Mr. Murphy also asserted that he received ineffective assistance of counsel

in the state court plea proceedings because his counsel had not discovered the

prior plea in Sandoval County before Mr. Murphy entered into the agreement at

issue here. The magistrate rejected this claim, holding that even if Mr. Murphy’s

counsel had been ineffective in failing to discover the earlier plea, Mr. Murphy

had failed to show prejudice from the failure. We agree.

      A defendant who seeks to challenge the validity of a guilty plea on the

ground of ineffective assistance of counsel “must show that there is a reasonable

probability that, but for counsel’s errors, he would not have pleaded guilty and

would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Mr. Murphy has failed to make such a showing. We find no reason to believe that

Mr. Murphy would have insisted on going to trial to face a possible sentence of

188 years when he accepted a plea agreement to avoid facing a possible sentence

of 190 years. We likewise do not believe the elimination of the duplicative count

would have led counsel to change her recommendation that Mr. Murphy accept


                                         -4-
the plea. See id. at 59-60. Indeed, Mr. Murphy has not requested that his plea be

vacated so that he can proceed to trial, nor has he asserted that he would not have

pled guilty and would have insisted on going to trial. 2

      We conclude that Mr. Murphy has failed to make a substantial showing of

the denial of a constitutional right. We therefore DENY his application for a

certificate of probable cause and DISMISS his appeal.

                                                ENTERED FOR THE COURT


                                                Stephanie K. Seymour
                                                Chief Judge




      2
        Mr. Murphy seeks an opportunity to renegotiate his plea as an alternative
to proceeding to trial. Even if we were inclined to hold that the requisite
prejudice could be established by showing a reasonable probability that the State
would renegotiate and agree to a plea more favorable to Mr. Murphy, he cannot
show such a reasonable probability given the state court’s conclusion that a
reduction in Mr. Murphy’s already favorable term of incarceration was not
warranted upon elimination of the duplicative charge.

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