                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  July 17, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 JESSE TRUJILLO,

              Petitioner-Appellant,                    No. 13-2028
                                            (D.C. No. 1:12-CV-00406-JB-RHS)
 v.                                                    (D. of N.M.)
 CHRISTINE MARTINEZ, Warden,
 and GARY K. KING, New Mexico
 Attorney General,

              Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before BRISCOE, Chief Judge, ANDERSON, and TYMKOVICH, Circuit
Judges.


      Jesse Trujillo, a New Mexico state prisoner, seeks a certificate of

appealability (COA) to enable him to appeal the district court’s denial of his

petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253(a), and we construe Trujillo’s filings liberally because he is

proceeding pro se. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir.

1991). For the reasons stated below, we deny the application for a COA and

dismiss this matter.

      *
         This order is not binding precedent except under the doctrines of law of
the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      In 1981, while serving a life sentence for a 1979 felony murder conviction,

Trujillo was convicted of, among other things, escape from prison, conspiracy to

escape, and two more murders. The state court sentenced Trujillo to two

additional life sentences for the new murder convictions. The court imposed a

separate sentence for the escape-related charges, which was to be served prior to

the life sentences for the additional murders. The escape and new murder

sentences were also to be served consecutively. The New Mexico Court of

Appeals, however, vacated the escape-related convictions and remanded for a new

trial on these charges. Rather than retry Trujillo, the state then dismissed the

escape charges.

      In his petition for a COA, Trujillo raises two claims based on the above

facts. First, he alleges that the state has denied him parole hearings for the 1979

murder charge, a violation of his right to due process that now requires us to

vacate the 1979 murder sentence. Second, he alleges that because the escape

charges were invalidated on appeal and because he was not retried on these

charges, the two additional murder charges are now somehow invalid.

      To obtain a COA on either of these claims, Trujillo must make a

“substantial showing of the denial of a constitutional right,” 28 U.S.C.

§ 2253(c)(2), such that “reasonable jurists would find the district court’s

assessment of the constitutional claims debatable or wrong,” Miller-El v.

Cockrell, 537 U.S. 322, 338 (2003).

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      Both of Trujillo’s claims fail under this standard. As to the first, Trujillo

points to two state criminal statutes governing eligibility for parole. One statute,

passed before Trujillo committed the 1979 murder, accorded a prisoner eligibility

for parole after he had served the first ten years of a life sentence. Another

statute, passed after the 1979 murder, made a prisoner eligible for parole only

after serving thirty years. Trujillo alleges that he was denied a parole hearing for

over ten years because of the state’s misplaced reliance on a statute that was

passed after he had committed the 1979 murder.

      If what Trujillo alleges were true, such a basis for the denial of a parole

hearing might give rise to due process concerns, as we reasoned in Devine v. New

Mexico Department of Corrections, 866 F.2d 339 (10th Cir. 1989). But in fact,

the respondents here concede that Trujillo was eligible for parole after serving the

first ten years on the 1979 murder conviction. They nevertheless contend that

Trujillo refused to show up for parole hearings. While the state court reviewing

Trujillo’s petition noted that it was unclear whether Trujillo had failed to

participate in all of the parole hearings he had been eligible to attend, it

concluded that the proper remedy was to accord Trujillo yearly parole hearings

for the 1979 murder charge. According such a remedy is consistent with our

holding in Devine, and Trujillo points us to no authority suggesting that the state

court’s relief is somehow constitutionally deficient. Further, we find no support




                                          -3-
for his contention that the alleged denial of a parole hearing requires that we now

vacate his sentence for the 1979 murder charge.

      Trujillo fares no better with his second claim. In essence, he alleges that

because convictions for which he was serving one sentence were vacated, any

sentence to be served consecutive to the vacated sentence must also be invalid.

Trujillo cites no authority for this proposition, and we decline to endorse such a

broad rule: if a court vacates one conviction for a criminal defendant, it does not

necessarily follow that all sentences served subsequent to a now-vacated sentence

are consequently invalidated.

      Therefore, because reasonable jurists would not find the district court’s

assessment of either of Trujillo’s alleged constitutional claims debatable or

wrong, we deny the petition for a COA and dismiss this matter.

                                                     ENTERED FOR THE COURT

                                                     Timothy M. Tymkovich
                                                     Circuit Judge




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