                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        March 27, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 R AY M ON D JA RA M ILLO ,

              Petitioner - A ppellant,                    No. 07-2009
       v.                                              (D. New M exico)
 CHRISTINE VALLEJOS, W arden;                  (D.C. No. CIV-06-225 JH/CEG)
 TH E A TTO RN EY G EN ER AL OF
 TH E STA TE O F N EW M EX IC O,

              Respondent - Appellee.



            OR DER DENY ING CERTIFICATE O F APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      Raymond Jaramillo seeks a Certificate of Appealability (COA) to appeal

the district court’s denial of his application for relief under 28 U.S.C. § 2254.

See 28 U.S.C. § 2253(c)(1) (requiring COA to appeal the denial of habeas relief).

In his M arch 23, 2006, application filed in the United States District Court for the

District of New M exico, he asserted that the State of New M exico had punished

him in violation of the double-jeopardy clause because he had received two

sentences for the same offense. The district court adopted the magistrate judge’s

Proposed Findings and Recommended Disposition, dismissed his application, and

denied a COA. W e deny a COA and dismiss the appeal.
      At issue is the construction of M r. Jaramillo’s plea agreement in New

M exico state court. Under the agreement he would plead guilty to two counts of

attempting to traffic a controlled substance. The agreement described the first

count as Count I in a case with file number CR-2004-31 and described the second

count as Count I in a case with file number CR-2004-32. The second page of the

agreement contained a paragraph that read: “Additional charges. The following

charge will be dismissed, or if not yet filed, shall not be brought against the

defendant: CR-2004-32: COUNT II: Possession of Drug Paraphernalia.” R.

Doc. 10 Ex. E at 2.

      The state court approved the plea agreement and sentenced M r. Jaramillo to

three years’ imprisonment on each count, the terms to run consecutively.

M r. Jaramillo sought state post-conviction relief, arguing that he had been

sentenced tw ice for the same offense. The state district court denied relief. H e

sought a w rit of certiorari from the New M exico Supreme Court, again raising his

double-jeopardy argument. That court also denied relief.

      The A ntiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court will grant habeas relief only when the applicant establishes that the

state-court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States,” or “was based on an unreasonable determination of the facts in

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light of the evidence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2). “U nder the ‘contrary to’ clause, we grant relief only if the state

court arrives at a conclusion opposite to that reached by the Supreme Court on a

question of law or if the state court decides a case differently than the [Supreme]

Court has on a set of materially indistinguishable facts.” Gipson v. Jordan, 376

F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal quotation marks omitted).

“Under the ‘unreasonable application’ clause, relief is provided only if the state

court identifies the correct governing legal principle from the Supreme Court’s

decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Id. (brackets and internal quotation marks omitted). Thus a habeas w rit

may not issue “simply because we conclude in our independent judgment that the

relevant state-court decision applied clearly established federal law erroneously or

incorrectly. Rather, that application must also be unreasonable.” Id. (internal

quotation marks omitted). Because the state courts adjudicated M r. Jaramillo’s

claim on the merits, we incorporate AEDPA’s deferential treatment of state-court

decisions into our consideration of his request for a COA. See Dockins v. Hines,

374 F.3d 935, 938 (10th Cir. 2004).

      M r. Jaramillo essentially contends that his plea agreement provided for

dismissal of both Counts I and II in CR-2004-32, so his two consecutive

sentences must each be punishment for his conviction on Count I in CR-2004-31.

Because this reading of the agreement is clearly wrong, the state courts’ denial of

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his double-jeopardy claim was not an unreasonable application of clearly

established federal law. The federal district court’s resolution of this issue was

neither debatable nor w rong. See Slack v. M cDaniel, 529 U.S. 473, 484 (2000)

(describing standard for granting a COA).

      In his application for a COA M r. Jaramillo also contends that his plea

agreement was involuntary and asserts a denial of his right to due process and

equal protection. B ut because he did not raise those claims in district court, we

will not address them. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005).

      W e DENY M r. Jaramillo’s application for a COA and DISM ISS the appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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