                                                                        FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 August 4, 2009
                                                              Elisabeth A. Shumaker
                      UNITED STATES COURT OF APPEALS              Clerk of Court

                               TENTH CIRCUIT


 FRANK M. MUÑIZ,

              Petitioner–Appellant,
                                                        No. 09-2048
 v.                                          (D.C. No. 08-CV-00494-MV-LFG)
                                                         (D.N.M.)
 MIKE HEREDIA, Warden,

              Respondent–Appellee.


                             ORDER DENYING
                      CERTIFICATE OF APPEALABILITY


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.



      Frank M. Muñiz, a state prisoner proceeding pro se, 1 seeks a certificate of

appealability (“COA”) to appeal the denial of his 28 U.S.C. § 2241 petition for a

writ of habeas corpus. We agree with the district court that Muñiz has not been

subjected to double jeopardy and that his challenge to his sentencing

enhancements does not sound in habeas. Accordingly, we deny a COA and

dismiss the appeal.




      1
       Because Muñiz appears pro se, we construe his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972).
      Muñiz pled guilty in New Mexico state court in 2000 to one count of

residential burglary and one count of aggravated assault with a deadly weapon.

He received a three-year suspended sentence on the residential burglary count and

ten and a half years’ imprisonment for aggravated assault. Muñiz’s aggravated

assault conviction was enhanced pursuant to state law for use of a firearm and

because he was a habitual offender.

      In May 2008, Muñiz filed the present § 2241 petition for a writ of habeas

corpus in the United States District Court for the District of New Mexico, raising

two issues. He first claimed that because his good time credits were improperly

allocated to his suspended sentence, New Mexico had violated the Double

Jeopardy Clause of the Fifth Amendment by making him serve a sentence longer

than the one actually imposed. Second, Muñiz asserted that his aggravated

assault sentence was improperly enhanced based on an error of state law. 2 A

magistrate judge recommended that the petition be denied. As to Muñiz’s first

contention, the magistrate judge found there was a clerical error indicating that

good time credits were accruing to the suspended sentence rather than the

sentence of incarceration. Relying on an affidavit from a New Mexico



      2
        Before the district court, Muñiz alleged that this enhancement violated the
Fifth, Sixth, and Fourteenth Amendments, though he provided little elaboration.
Despite these citations, the substance of his argument contests solely errors of
state law. Before this court, he does not anchor his sentencing enhancement
argument to a specific provision of the Constitution.

                                        -2-
Corrections Department employee attesting that this error had been corrected and

did not affect the duration of Muñiz’s sentence, the magistrate judge concluded

that relief was not warranted. Regarding Muñiz’s second assertion, the magistrate

judge found that Muñiz’s argument rested on an incorrect interpretation of state

law. The district court adopted the magistrate judge’s recommendation and

denied the petition. Muñiz now seeks a COA from this court on the same two

issues he raised below.

      Because Muñiz is in state custody and did not obtain a COA from the

district court, he may not appeal the district court’s decision absent a grant of a

COA by this court. Montez v. McKinna, 208 F.3d 862, 868-69 (10th Cir. 2000);

see § 2253(c)(1)(A). To obtain a COA, Muñiz must make “a substantial showing

of the denial of a constitutional right.” § 2253(c)(2). This requires Muñiz to

demonstrate “that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation omitted). Because

Muñiz does not challenge the validity of his conviction or sentence but rather its

execution, his claim is properly brought under § 2241. See McIntosh v. U.S.

Parole Comm’n, 115 F.3d 809, 811 (10th Cir. 1997).

      As to Muñiz’s first issue, the record indicates that although his good time

credits may have been improperly allocated to his suspended sentence for a period

                                         -3-
of time due to a clerical error, the mistake has been corrected and does not affect

the duration of his sentence or his anticipated release date. Thus, he is not being

twice subjected to punishment for the same offense. Reasonable jurists could not

debate whether Muñiz’s first contention should have been resolved differently.

      Second, Muñiz’s challenge to his sentencing enhancement does not sound

in habeas. Before this court, Muñiz relies exclusively on state law; he does not

allege a constitutional violation or other violation of federal law. See Rael v.

Williams, 223 F.3d 1153, 1154 (10th Cir. 2000) (errors of state law alone are not

cognizable in habeas). Accordingly, reasonable jurists could not debate whether

the petition should have been resolved differently on this ground.

      For the reasons stated, we DENY the application for a COA and DISMISS

the appeal.



                                       Entered for the Court



                                       Carlos F. Lucero
                                       Circuit Judge




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