Robert D. Cummings, Plaintiff-appellant, v. New Mexico Department of Corrections; Attorney General Ofthe State of New Mexico, Defendants-appellees, 59 F.3d 178 (10th Cir. 1995)

ORDER AND JUDGMENT¹ 

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 argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Robert D. Cummings (Cummings), having been granted leave to proceed in forma pauperis, appeals from the district court's Order adopting the Magistrate Judge's Proposed Findings and Recommended Disposition and dismissing his petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 with prejudice. In order to reach the merits of his claims, we grant his request for a Certificate of Probable Cause.

On April 1, 1986, Cummings was arrested by state and federal authorities. He was convicted and sentenced on the federal charges on January 20, 1987. In state court, on October 19, 1987, Cummings plead guilty to second-degree murder with a firearm, and admitted his identity as a person convicted of a prior felony.

On November 6, 1987, at a hearing in which all parties were present, including Cummings, the trial court orally sentenced Cummings to eleven years incarceration, with three years suspended, and presentence confinement credit from the date of arrest. On November 10, 1987, the trial court held a teleconference for the purpose of reducing the presentence confinement credit to eighty-two days; Cummings was not present at the conference. On November 16, 1987, the trial court entered a Final Judgment and Sentence which reduced the presentence confinement credit to eighty-two days.

The New Mexico Court of Appeals reversed the sentence and remanded to the trial court to hold a factual hearing to determine the amount of presentence confinement credit to which Cummings was entitled, stating that Cummings should be present at the hearing.

No hearing was held. However, on August 7, 1989, the trial court filed an Amended Final Judgment and Sentence which reinstated Cummings' confinement credit from the date of arrest, April 1, 1986.

On appeal, Cummings contends that he was denied his right to be present at sentencing when the trial court twice adjusted his sentence without him being present and that he was denied due process by the trial court's arbitrary denial of presentence credit for time served presentence and pending appellate review.

We have reviewed the record and the briefs. We affirm for substantially the reasons set forth in the Magistrate Judge's Proposed Findings and Recommended Disposition of November 8, 1994.

AFFIRMED. The mandate shall issue forthwith.