                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         AUG 16 2001
                                     TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 EARNEST MONCADA,

           Petitioner - Appellant,
 vs.                                                    No. 00-6460
                                                  (D.C. No. 99-CV-1766-C)
 GARY L. GIBSON, Warden,                                (W.D. Okla.)

           Respondent - Appellee.


                              ORDER AND JUDGMENT *


Before EBEL, KELLY, and LUCERO, Circuit Judges. **


       Mr. Moncada, a state inmate appearing pro se, applies for a certificate of

appealability (“COA”) to appeal the district court’s denial of his habeas corpus

petition, 28 U.S.C. § 2254. Mr. Moncada was convicted of assault and battery

with a deadly weapon and second-degree burglary in Oklahoma state court. II R.

at 134. He received concurrent sentences of 999 and 979 years for the respective


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
crimes. Id. at 135.

      In his petition for habeas relief filed in federal district court, Mr. Moncada

asserted four grounds for relief, including a claim that his conviction violated his

double jeopardy rights. I R. doc. 1, at 5-9. The matter was referred to a

magistrate judge, who recommended that the petition be denied. I R. doc. 22, at

16-17. The magistrate judge advised Mr. Moncada that “failure to make timely

objection to th[e] Report and Recommendation waives his right to appellate

review of both factual and legal questions contained herein.” Id. at 17 (citing

Moore v. United States, 950 F.2d 656 (10th Cir. 1991)).

      Mr. Moncada objected only to the magistrate judge’s resolution of his

double jeopardy claim. I R. doc. 23, at 2-3. The district court affirmed and

adopted the magistrate judge’s report and recommendation, I R. doc. 24, at 1-2,

and subsequently denied Mr. Moncada’s request for a COA. I R. doc. 32, at 1.

      Mr. Moncada now applies to this court for a COA, asserting that he is

actually innocent and that his conviction violated double jeopardy. We consider

only the latter argument because Mr. Moncada did not object to the magistrate

judge’s finding that there was sufficient evidence to support his conviction.

Moore, 950 F.2d at 659. The essence of Mr. Moncada’s double jeopardy claim is

that he was punished twice for the same crime insofar as his “conviction of

burglary is premised upon his intent to commit an assault . . . .” Pet. Amend. Br.


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at 6.

        To obtain a COA, Mr. Moncada must make a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). We have reviewed the

record, including Mr. Moncada’s habeas petition, the magistrate judge’s report

and recommendation, the district court’s order, and Mr. Moncada’s COA

application, amended application, and opening brief. Having done so, we hold

that a COA should not issue for substantially the same reasons given by the

district court.

        The Double Jeopardy Clause of the Fifth Amendment does not prohibit the

imposition of cumulative punishments for separate crimes that arise from the

same sequence of events, so long as such punishments are not greater than the

legislature intended. Missouri v. Hunter, 459 U.S. 359, 366 (1983). “ In assessing

whether a state legislature intended to prescribe cumulative punishments for a single

criminal incident, we are bound by a state court's determination of the legislature's

intent.” Birr v. Shillinger, 894 F.2d 1160, 1161 (10th Cir. 1990) (citation

omitted). The OCCA has held that the Oklahoma legislature did not intend for

“[b]urglary and other offenses committed within the structure burgled” to merge.

Taylor v. State, 889 P.2d 319, 339 (Okla. Crim. App. 1995). “The burglary . . .

perpetrated [is] complete when [the perpetrator] enter[s] the victims' residence

with the intent to commit a crime.” Id. Accordingly, Mr. Moncada has not


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“demonstrate[d] that reasonable jurists would find the district court's assessment

of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S.

473, 484 (2000).

      We therefore DENY Mr. Moncada’s COA application and DISMISS his

petition.



                                             Entered for the Court


                                             Paul J. Kelly, Jr.
                                             Circuit Judge




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