F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 29 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-2263
v.
(D.C. No. CIV-96-801-HB)
(District of New Mexico)
RANDY LUCERO,
Defendant-Appellant.
ORDER
Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.
Randy Lucero seeks a certificate of appealability to contest the denial of his pro se
motion filed under 28 U.S.C. § 2255. We have examined the record and considered the
arguments raised in Mr. Lucero’s motion and conclude the district court did not err in its
disposition. Mr. Lucero attempts to raise a double jeopardy argument in this court that
apparently was not presented to the district court, but we will not consider issues raised
for the first time on appeal.
His argument is meritless nevertheless because it is premised on a contention Mr.
Lucero was convicted twice for the same conduct. He argues one of the crimes of
conviction is the lesser included of the other. That contention is faulty because the crimes
of conviction are conspiracy to distribute cocaine and possession with intent to distribute
cocaine. Neither of those offenses is included within the other.
Principally for the reasons given in the recommendations of the magistrate judge,
we conclude Mr. Lucero has failed to demonstrate the denial of a constitutional right by
showing the issues raised in his appeal are debateable among jurists; that a court could
resolve the issues differently; or that the questions deserve further proceedings. The
certificate of appealability is DENIED and the appeal is DISMISSED. 28 U.S.C.
§ 2253(c)(2); Lennox v. Evans, 87 F.3d 431 (10th Cir. 1996). The motion for leave to
proceed without payment of fees is GRANTED.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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