F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JUN 22 2001
                               TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                              Clerk



 CONRAD BEHRING,
                                                        No. 00-2488
             Petitioner - Appellant,
 v.                                                  (D. New Mexico)
 ERASMO BRAVO, Warden,                        (D.C. No. CIV-00-854-LH/RLP)
 Guadalupe County Correctional
 Facility, ATTORNEY GENERAL
 FOR THE STATE OF NEW MEXICO,

             Respondents - Appellees.




                          ORDER AND JUDGMENT            *




Before HENRY , BRISCOE , and MURPHY , Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.

      Petitioner Conrad Behring, a state prisoner appearing pro se, seeks a

certificate of appealability (“COA”) allowing him to appeal the district court’s

order denying relief on his 28 U.S.C. § 2254 petition for a writ of habeas corpus.

Because Mr. Behring has failed to make “a substantial showing of the denial of a

constitutional right” under 28 U.S.C. § 2253(c)(2), we deny his request for a COA

and dismiss his appeal.

      In 1998, Mr. Behring entered a guilty plea to two counts of homicide by

vehicle, one count of great bodily injury by vehicle, and one count of aggravated

driving while under the influence of intoxicating liquor (second offense), all in

violation of New Mexico law. At the time of his guilty plea, Mr. Behring was

represented by counsel. He was sentenced to twelve years’ imprisonment,

followed by two years’ parole. Mr. Behring’s counsel filed an appeal questioning

whether the length of his sentence was based on a proper interpretation of the

relevant statute. The sentence was then affirmed by the New Mexico Court of

Appeals, as the statutory interpretation issue had been resolved in a different case

during the pendency of Mr. Behring’s appeal.

      Proceeding pro se, Mr. Behring then filed a petition for writ of habeas

corpus in state court. This petition raised the following claims: that his


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indictment on two counts of vehicular homicide violated the Double Jeopardy

Clause of the Constitution, as it arose from a single car accident (even though that

accident killed two people); that his counsel had been ineffective for failing to

raise this issue; and that he had been incompetent to plead guilty. The petition

was denied by the New Mexico district court, as was his petition for writ of

certiorari to the Supreme Court of the State of New Mexico.

       On June 12, 2000, Mr. Behring filed the instant petition for writ of habeas

corpus with the federal district court. On Sept. 25, 2000, the magistrate judge

recommended that the petition be dismissed with prejudice.     The district court

adopted this recommendation on Nov. 13, 2000,      and denied a COA on December

7, 2000 .

       We have reviewed the magistrate judge’s recommended disposition, the

district court order, Mr. Behring’s submissions to this court, and the record on

appeal. For substantially the same reasons as set forth by the magistrate judge

and the district court (particularly that “each individual killed is a separate count

and does not violate double jeopardy,”   see Rec. Doc. 4), we agree that Mr.

Behring has failed to make “a substantial showing of the denial of a constitutional

right,” as required by 28 U.S.C. § 2253.




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      We therefore DENY Mr. Behring’s request for a COA and DISMISS this

appeal.

                                          Entered for the Court,



                                          Robert H. Henry
                                          Circuit Judge




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