Archuleta v. LeMaster, (10th Cir. 2002)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

JOHNNY O. ARCHULETA,

Petitioner - Appellant,



v.

No. 01-2242

TIM LEMASTER, Warden, Lea County

Correctional Facility; ATTORNEY

GENERAL FOR THE STATE OF NEW

MEXICO,

Respondents - Appellees.

(D.C. No. CIV-00-997-JP/DJS)

(D. New Mexico)

ORDER AND JUDGMENT
name="txt*">(*)

Before SEYMOUR, HENRY, and

BRISCOE, Circuit Judges.

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

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered

submitted without oral argument.

Petitioner Johnny O. Archuleta, a state prisoner appearing pro se, seeks a

certificate of appealability (COA) to appeal the district court's denial of his 28 U.S.C. § 2254 habeas petition. Because he has failed to make a "substantial showing of the

denial of a constitutional right" as required by 28 U.S.C. § 2253(c)(2), we deny his

request for a COA and dismiss the appeal.

Archuleta was convicted by a jury in state court of first degree murder, attempted

first degree murder, aggravated burglary, intimidation of a witness, tampering with

evidence, and felon in possession of a firearm, and was sentenced to life imprisonment

plus 24½ years. His convictions were affirmed in his direct appeal on May 8, 1995. He

sought state post-conviction relief on March 13, 1997, alleging ineffective assistance of

trial counsel. State habeas relief was denied on March 17, 2000, and certiorari was

denied on June 5, 2000.

In his § 2254 habeas petition, Archuleta alleged he was denied effective assistance

of counsel and he was denied due process because the state court denied his habeas

petition "without a meaningful hearing." In its report and recommendation, the

magistrate court found that petitioner had "not outlined an alternative trial strategy or

shown that counsel's approach to the case was objectively unreasonable," and that the

evidence Archuleta sought to present at a hearing "was expert testimony regarding his

trial counsel's alleged ineffective performance." Record, Doc. 15 at 5. The district court

considered Archuleta's objections to the magistrate's report, adopted the findings and the

recommended disposition of the magistrate court, and dismissed the habeas action.

On appeal, Archuleta contends (1) the district court erred in finding he failed to

show ineffective assistance of trial counsel; (2) the court erred in ruling he was not

entitled to a "full and fair state court hearing on the factual issues" raised in his state

habeas petition; (3) the court erred in not reviewing the record; and (4) the court erred in

not appointing counsel. Id., Doc. 1.

Ineffective assistance of counsel claim ­ "Reviewing courts should

avoid

hindsight and second-guessing, and extend deference to counsel's tactical judgments."

Osborn v. Shillinger, 861 F.2d 612, 625 (10th Cir. 1988). The state court denied

Archuleta's habeas ineffective assistance claim after concluding it was merely a challenge

to counsel's trial strategy. The magistrate court agreed and found that Archuleta had not

shown that counsel's approach was "objectively unreasonable" when counsel sought to

rebut the state's theory that Archuleta acted out of jealousy and thereby "opened the

door" to permit admission of Archuleta's prior conviction. Record, Doc. 15 at 5. We

agree that counsel's defense strategy did not rise to the level of ineffective assistance of

counsel.

Full and fair state hearing claim ­ Questions of state procedural law do

not give

rise to federal habeas claims. See Beavers v. Saffle, 216 F.3d 918, 922 (10th

Cir. 2000).

Further, as the magistrate noted, the evidence Archuleta sought to present at the hearing

was expert testimony regarding his trial counsel's alleged ineffective performance. The

New Mexico Supreme Court has recently rejected such testimony, stating it is

"superfluous for expert witnesses to advise a court, whether it is the district court or an

appellate court, about the proper application of existing law to the established historical

facts and about the ultimate issue of trial counsel's effectiveness." Lytle v. Jordan, 22

P.3d 666, 679-80 (N.M. 2001).

Failure to examine record and failure to appoint counsel claims ­

Archuleta has

failed to explain how an examination of the state record would entitle him to federal

habeas relief. Further, he does not have a Sixth Amendment right to appointed counsel

in a federal habeas proceeding. See Pennsylvania v. Finley, 481 U.S. 551, 555

(1987).

Defendant's request for a certificate of appealability is DENIED and the appeal is

DISMISSED. The mandate shall issue forthwith.

Entered for the Court

Mary Beck Briscoe

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*.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.

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