                                                                        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judgment is not binding precedent, except under the doctrines of law of the case,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


                                          -3-
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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