                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               OCT 7 2002
                                     TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 FRANK M. MUNIZ,

          Petitioner - Appellant,

 v.
                                                            No. 02-2120
 LAWRENCE A. TAFOYA, Warden,                      (D.C. No. CIV-02-252-WPJ-DJS)
 Southern New Mexico Correctional                        (D. New Mexico)
 Facility; PATRICIA A. MADRID,
 Attorney General for the State of New
 Mexico,

          Respondents - Appellees.




                                ORDER AND JUDGMENT*


Before SEYMOUR, HENRY 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)(2); 10th Cir. R. 34.1(G). The case 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        This order and judgment is not binding precedent, except under the doctrines of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, and 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.
       Petitioner Frank Muniz, a state prisoner appearing pro se, seeks a certificate of

appealability (COA) to challenge the district court’s denial of his petition for writ of

habeas corpus. Because he has failed to make a “substantial showing of the denial of a

constitutional right,” as required by 28 U.S.C. § 2253(c)(2), we deny his request for a

COA and dismiss the appeal.

       Muniz filed a petition for federal habeas relief asserting two claims. First, he

asserted that after he was convicted in New Mexico state court for escaping from a police

officer, respondent prison officials violated the Double Jeopardy Clause by using his

escape conviction to classify him as an escape risk and placing him in involuntary

administrative segregation. Second, he asserted that the New Mexico state courts violated

his constitutional rights by refusing to appoint counsel to represent him in his state habeas

proceedings. The district court dismissed the petition, concluding no relief was available

on the double jeopardy claim, since “[j]eopardy only attaches in an actual criminal

proceeding.” ROA, Doc. 6 at 1. The district court further concluded that “where, as here,

a petitioner’s underlying claim is insubstantial, there is not a constitutional right to

counsel in a state court collateral proceeding.” Id. at 2.

       In order for Muniz to make a substantial showing of the denial of a constitutional

right, he must 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.


                                               2
McDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Nothing in the facts, the record

on appeal, or Muniz’ application for COA or brief raises an issue which meets this

standard. Muniz’ custody classification is not punishment nor part of a criminal

prosecution, but rather an administrative method for housing inmates based on past

behavior. Thus, the classification does not implicate double jeopardy concerns. See

Breed v. Jones, 421 U.S. 519, 528 (1975) (concluding that jeopardy attaches only to

proceedings which are “essentially criminal” in nature); Bailey v. Shillinger, 828 F.2d

651, 652 (10th Cir. 1987) (concluding that classification or placement of an inmate in

administrative segregation generally does not involve deprivation of a liberty interest).

As for Muniz’ assertion that he was denied counsel during his state habeas proceedings,

the district court correctly noted that criminal defendants, such as Muniz, have no federal

constitutional right to counsel to pursue state habeas relief. See Coleman v. Thompson,

501 U.S. 722, 757 (1991).

       Muniz’ request for a COA is DENIED and the appeal is DISMISSED. The

mandate shall issue forthwith.

                                                  Entered for the Court

                                                  Mary Beck Briscoe
                                                  Circuit Judge




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