                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  March 18, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT



 CHRISTOPHER J. BELLIN,

          Petitioner-Appellant,
 v.                                                      No. 08-1395
 RICHARD SMELSER, Warden;                        (D.C. No. 08-cv-1478-ZLW)
 JOHN SUTHERS, The Attorney                             (D. Colorado)
 General of the State of Colorado,

          Respondents-Appellees.



            ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.


      Christopher Bellin, a Colorado state prisoner appearing pro se, seeks a

certificate of appealability (COA) in order to challenge the district court’s denial

of his 28 U.S.C. § 2254 application for federal habeas relief. Because Bellin has

failed to satisfy the standards for the issuance of a COA, we deny his request and

dismiss the matter.

                                          I

      In February of 1994, Bellin was charged in Colorado state district court



      *
        This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
with five counts of sexual assault on a child by one in a position of trust, in

violation of Colo. Rev. Stat. § 18-3-405.3(1) and (2). In June of 1994, Bellin pled

guilty to three of those counts. On October 13, 1994, Bellin was sentenced to

eight years’ imprisonment on each count, with the sentences to be served

concurrently.

      On February 1, 1995, Bellin moved for a reduction or modification of

sentence pursuant to Colo. R. Crim. P. 35(b). Over two years later, on April 24,

1997, the trial court granted Bellin’s motion and resentenced him to a twelve-year

term of sex offender probation.

      On September 30, 2004, the State of Colorado moved to revoke Bellin’s

probation. In an affidavit filed in support of the motion, Bellin’s probation

officer stated that Bellin had been charged with second degree burglary,

attempted sexual assault, and unlawful sexual contact. The State of Colorado

subsequently filed amended motions to revoke alleging that Bellin had been

terminated from sex offender probation and had failed to comply with global

positioning system monitoring.

      On October 21, 2005, Bellin and the State entered into a written agreement

entitled “Statement of Disposition - Revocation.” ROA, Vol. 1, Doc. 12, Exh. B

at 3. Under the terms of the agreement, Bellin confessed to the allegations in the

State’s original motion to revoke. Further, the parties agreed that “sentencing on

each count” set forth in the motion to revoke would “be left open to the discretion

                                           2
of the Court,” that “[t]he sentencing range on each count [would] be from 2-8

years,” and that the question of “[w]hether counts [would be] consecutive or

concurrent [would be] left open to the Court.” Id., Exh. C at 2. On January 5,

2006, the trial court sentenced Bellin to eight years’ imprisonment on each count

confessed by him, with the sentences on each count to be served consecutively.

      Bellin appealed his sentences, arguing that, because he “was originally

sentenced . . . to a legal sentence of three concurrent eight-year sentences, the

[trial] court violated the Double Jeopardy Clauses of the United States and

Colorado Constitutions by increasing [his] prison sentence . . . to three

consecutive eight-year terms, for a total of twenty-four years.” Id., Exh. B at 5.

On December 27, 2007, the Colorado Court of Appeals (CCA) affirmed Bellin’s

sentences, concluding that Bellin had invited the alleged error by entering into a

plea agreement that granted the trial court authority to order the sentences to be

served consecutively. On May 12, 2008, the Colorado Supreme Court denied

certiorari review.

      Bellin then initiated this action by filing a pro se application for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. In his application, Bellin alleged, as

he had on direct appeal, that the consecutive sentences imposed by the trial court

violated the Double Jeopardy Clauses of the United States and Colorado

Constitutions. Bellin also alleged that the CCA erred in applying the invited error

doctrine to his case. On October 6, 2008, the district court denied Bellin’s

                                           3
application and dismissed the matter. In doing so, the district court rejected

Bellin’s double jeopardy claim, concluding that “[a] court is able to impose any

sentence in a revocation proceeding which originally might have been imposed,”

id., Doc. 14 at 6 (citing Gillespie v. Hunter, 159 F.2d 410, 412 (10th Cir. 1947)),

and that “any expectation of finality in a sentence is absent when a defendant

agrees, as . . . Bellin did in the Statement of Disposition-Revocation, . . . to leave

to the discretion of the court whether any resentences would be served

concurrently or consecutively.” Id. (citing Ward v. Williams, 240 F.3d 1238,

1242 (10th Cir. 2001)).

      Bellin filed a timely notice of appeal. The district court denied Bellin a

COA and denied him leave to proceed on appeal in forma pauperis (IFP). Bellin

has now renewed his requests for COA and IFP status with this court.

                                           II

      Issuance of a COA is jurisdictional. Miller-El v. Cockrell, 537 U.S. 322,

336 (2003). In other words, a state prisoner may appeal from the denial of federal

habeas relief under 28 U.S.C. § 2254 only if the district court or this court first

issues a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be issued “only if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). In order to make that showing, a prisoner 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


                                           4
issues presented were adequate to deserve encouragement to proceed further.”

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

      After carefully reviewing Bellin’s appellate pleadings and the record on

appeal, we conclude he has failed to establish that reasonable jurists could debate

whether his habeas petition should have been resolved in a different manner by

the district court. “The Double Jeopardy Clause of the Fifth Amendment,

applicable to the States through the Fourteenth Amendment,” “protects against

successive prosecutions for the same offense after acquittal or conviction and

against multiple criminal punishments for the same offense.” Monge v.

California, 524 U.S. 721, 727-28 (1998). Importantly, however, “[t]he Double

Jeopardy Clause does not provide the defendant with the right to know at any

specific moment in time what the exact limit of his punishment will turn out to

be.” United States v. DiFrancesco, 449 U.S. 117, 137 (1980). Indeed, as

exemplified by Bellin’s own case, both the United States Congress and numerous

state legislatures have “established many types of criminal sanctions under which

the defendant is unaware of the precise extent of his punishment for significant

periods of time, or even for life, yet these sanctions have not been considered

violative of the Clause.” Id. “Thus, there is no double jeopardy protection

against revocation of probation and the imposition of imprisonment.” Id.; see

Johnson v. United States, 529 U.S. 694, 700 (2000) (noting that “postrevocation

sanctions” are considered “part of the penalty for the initial offense”).


                                          5
      We therefore DENY Bellin’s request for a COA and DISMISS the matter.

Bellin’s motion for leave to proceed IFP on appeal is DENIED.


                                           Entered for the Court


                                           Mary Beck Briscoe
                                           Circuit Judge




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