                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 September 6, 2011
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT



 NICHOLAS VALDEZ,

                 Petitioner–Appellant,                    No. 11-1184
          v.                                    (D.C. No. 09-CV-02203-MSK)
 RICHARD SMELSER; JOHN W.                                  (D. Colo.)
 SUTHERS, The Attorney General for
 the State of Colorado,

                 Respondents–Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges.



      Petitioner, a state prisoner proceeding pro se, seeks a certificate of

appealability to appeal the district court’s denial of his § 2254 habeas petition.

      Petitioner was convicted in 2004 of attempted first degree murder after

deliberation, menacing, and third degree assault. His conviction and sentence

were affirmed on direct appeal, and the Colorado Supreme Court denied certiorari

review. In 2008, Petitioner’s motion for post-conviction relief under Colo. R.



      *
        This order is not binding precedent except under the doctrines of law of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.
Crim. P. 35(a) was denied. This denial was affirmed on appeal, and the Colorado

Supreme Court denied certiorari review.

      Petitioner filed this § 2254 habeas motion with the district court in 2009.

He raised three claims: first, the trial court lacked subject matter jurisdiction to

prosecute him; second, he was subjected to double jeopardy; and third, the trial

court and district attorney violated his due process rights when they improperly

misidentified Petitioner as having a prior conviction in a case two years earlier.

The district court ordered dismissal of the first two claims, then dismissed

Petitioner’s due process claim by separate order.

      After carefully reviewing Petitioner’s filings and the record on appeal, we

conclude that reasonable jurists would not debate whether the district court erred

in dismissing Petitioner’s claims. See Slack v. McDaniel, 529 U.S. 473, 484

(2000). The district court determined that Petitioner had not exhausted his first

two claims, but nevertheless ruled on the merits. It found the trial court had

jurisdiction over Petitioner because any misidentification of Petitioner for a prior

crime was irrelevant to the court’s association of Petitioner with the particular

crime of which he was now convicted. The district court also determined that

Petitioner’s double jeopardy claim was similarly without merit because he was

not being punished or prosecuted for the “same offense.” See, e.g., Monge v.

California, 524 U.S. 721, 727-28 (1998). As to Petitioner’s due process claim,

the district court correctly applied Supreme Court and Tenth Circuit precedent to

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conclude that the crux of Petitioner’s claim—the trial court’s alleged

misidentification of Petitioner Nicholas Valdez as Nicholas “Leonard”

Valdez—had already been addressed in Petitioner’s first two claims. The district

court also observed that, although the trial court did cite to a prior criminal case

against Petitioner during sentencing, its sentencing decision was not based on the

prior conviction but rather on Petitioner’s history of escalating violence and his

probationary status at the time the instant offense occurred.

      Therefore, for substantially the same reasons stated by the district court, we

DENY the application for a certificate of appealability and DISMISS Petitioner’s

appeals. We GRANT Petitioner’s motion for leave to proceed in forma pauperis.

                                                ENTERED FOR THE COURT


                                                Monroe G. McKay
                                                Circuit Judge




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