                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      May 29, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                   TENTH CIRCUIT


 HERBERT LEYBA,

          Petitioner-Appellant,
 v.

 WARDEN HARTLEY; ATTORNEY                               No. 08-1086
 GENERAL OF THE STATE OF                      (D.C. No. 06-cv-2381-LTB-CBS)
 COLORADO,                                               (D. Colo)

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, EBEL, and GORSUCH, Circuit Judges.


      Herbert Leyba was charged in Colorado with 284 separate counts of

criminal conduct. He eventually pled guilty to three counts of aggravated

robbery, see Colo. Rev. Stat. § 18-4-302(1)(b), in exchange for dismissal of the

other 281 counts. Pursuant to his guilty plea, and after receiving some initial

state post-conviction relief, Mr. Leyba was sentenced to two consecutive 20-year

prison terms and a third, concurrent, 20-year term.




      *
        This order is not binding precedent except under the doctrines of law of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.
      Proceeding pro se, Mr. Leyba filed a habeas petition pursuant to 28 U.S.C.

§ 2254 arguing, inter alia, that (1) his plea agreement required his sentences to be

served concurrently, and (2) his sentence was aggravated in violation of his Sixth

Amendment rights. Magistrate Judge Craig B. Shaffer issued a detailed 15-page

report and recommendation concluding that Mr. Leyba’s claims should be

dismissed with prejudice. The district court adopted the magistrate judge’s

recommendation, dismissed Mr. Leyba’s habeas petition, and subsequently denied

his application for a certificate of appealability (“COA”) and motion to proceed in

forma pauperis (“IFP”) before this court.

      Mr. Leyba now seeks a COA from us, and also renews his request to

proceed IFP. We may issue a COA only if Mr. Leyba makes “a substantial

showing of the denial of a constitutional right,” see 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). Based on our independent review of the record in this case, and for

substantially the same reasons given by the magistrate judge, we conclude that no

reasonable jurist could debate the correctness of the district court’s ruling.

Accordingly, we deny Mr. Leyba’s request for a COA and dismiss his appeal. We

likewise agree with the district court that Mr. Leyba’s appeal is not taken in good

faith, and so deny his renewed motion for leave to proceed IFP. Mr. Leyba is




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thus required to pay the filing fee immediately. See Clark v. Oklahoma, 468 F.3d

711, 714-15 (10th Cir. 2006).


                                     ENTERED FOR THE COURT




                                     Neil M. Gorsuch
                                     Circuit Judge




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