Martinez v. Tafoya, (10th Cir. 2001)

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UNITEDSTATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

JOSE LUIS CARLOS MARTINEZ,

Petitioner-Appellant,

v.

LAWRENCE A. TAFOYA, Warden;SOUTHERN NEW MEXICOCORRECTIONAL FACILITY;ATTORNEY GENERAL FORTHE STATE OF NEW MEXICO,

Respondents-Appellees.No. 00-2445

(D.C. No. CIV-99-672 LH/LCS)

(D. N.M.)

ORDER AND JUDGMENT(*)

Before HENRY, ANDERSON, andMURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determinedunanimously that oral argument would not materially assist the determinationof this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The caseistherefore ordered submitted without oral argument.

Jose Carlos Martinez, a New Mexico state prisoner, seeks a certificate ofappealability to pursue an appeal from an order of the district court denying hispetition for habeas corpus. Because he has failed to make "a substantial showingof the denial of a constitutional right," as required under 28 U.S.C. § 2253(c)(2),we deny his request and dismiss the appeal.

Factual and Procedural Background

A jury convicted Martinez of two counts of criminal sexual penetration andone count of kidnaping. His convictions arose from the rape of a ten-year-oldgirl, which occurred during a backyard wedding reception near Las Cruces,New Mexico. Both Martinez and the victim were guests at the reception.

According to the victim's testimony, sometime after nightfall a man she didnot recognize grabbed her from a swing and lead her through the darkness to anisolated spot in the sagebrush desert behind the reception area. He then pushedher to the ground, removed her clothing, and inserted his fingers into her vagina;several minutes later he penetrated her again, this time with his penis. A rapeexamination revealed vaginal tearing; such an injury, explained the treatingphysician, is consistent with forcible penetration. DNA testing confirmed thatstains found on the victim's clothing were Martinez's semen and blood. Thevictim's underwear was ripped, her face bruised and dirtied. After seeinga videotape of the reception, the victim identified Martinez as the assailant, anidentification she repeated at trial.

Additionally, Martinez's telephone pager was discovered at the crimescene, as was a plastic cup similar to those used at the wedding party. A searchof his trailer turned up the clothes he wore to the party; they were wrapped ina blanket and stuffed in the back of a closet. There was blood on his jacket, shirt,and pants. Martinez, who testified at trial, denied committing the assault. Heinsisted that he encountered the victim behind the reception area by chance, andclaims he did no more than assent to her demand for a kiss. His defense at trialrelied heavily on evidence that a pubic hair discovered on one of the victim'ssandals was not his.

Accompanied by a request for an evidentiary hearing, Martinez's habeaspetition raised three claims. The magistrate judge deemed one of themabandoned, a ruling Martinez does not challenge on appeal. With respect toMartinez's two remaining claims­ineffective assistance of counsel and violationof the rule against double jeopardy­the magistrate judge recommended denyingrelief. The magistrate judge, whose recommendation the district court adopted infull, did not address Martinez's request for an evidentiary hearing. On appeal,Martinez renews his ineffective assistance and double jeopardy claims, as well ashis request for an evidentiary hearing.

Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, a petitionermust demonstrate that (1) representation fell below an objective standard ofreasonableness, and (2) counsel's deficient performance prejudiced the defendant.See Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the firstprong, Martinez must show that defense counsel's performance was not simplywrong, but instead was completely unreasonable. See Hoxsie v. Kerby, 108 F.3d1239, 1246 (10th Cir. 1997). To show prejudice, Martinez must establish that,but for counsel's errors, there was a reasonable probability that the outcome ofhis trial would have been different. See id. at 1245.

Moreover, because Martinez filed his habeas petition after the effectivedate of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),our review of his ineffective assistance of counsel claim is governed by therevised standards of review set out in 28 U.S.C. § 2254(d). This standard allowsa federal court to grant habeas relief only if the relevant state court decision waseither "contrary to" or "an unreasonable application of" established Supreme Courtprecedent, or "resulted in a decision that was based on an unreasonabledetermination of the facts." 28 U.S.C. § 2254(d)(1) and (2). We conclude thatthe New Mexico state court's denial of Martinez's claim was neither contrary tonor an unreasonable application of Supreme Court precedent, nor was it the resultof an unreasonable determination of the facts.

Martinez alleges two instances of what he claims was constitutionallydeficient representation. First, he points to trial counsel's failure to retain anexpert to challenge the prosecution's DNA evidence. Second, he claims thatdefense counsel ignored potentially exculpatory witnesses.

Turning to the first allegation, Martinez argues that counsel's decisionagainst calling a DNA expert at trial violated the Strickland standard. Wedisagree. Martinez does not deny that it was his DNA found on the victim'sclothing. Rather, he offers an innocent explanation. As he told the jury, thevictim approached him behind the reception area and asked for a kiss. When heagreed, she bit his tongue, drawing blood. He surmised that some of this bloodmade its way onto her clothes. He also testified that shortly before sheapproached he had masturbated, and that during their kiss some of his semen wastransferred to her clothing. Given this testimony, there is no reason to believethat a DNA expert witness could have assisted the defense; indeed challenging theDNA evidence would have undermined Martinez's account of the incident.

No doubt recognizing this dilemma, the thrust of Martinez's argument isthat counsel should have retained a DNA expert before trial, to assist the defensein developing an alternate strategy to combat the prosecution's DNA evidence.Asserting that there can be no strategic reason for a lack of pretrial preparation,Martinez suggests that the failure to consult with an expert left counsel no choicebut to mount an ultimately misguided defense.

This may be so, but Martinez offers no evidence­here or below­toundermine our confidence in the DNA evidence presented at trial. The most hecan say is that defense counsel did not seek an expert to highlight "the variousdeficiencies of DNA analysis generally and the deficiencies of the particular labinvolved in the case." Appellant Br. at 17. This vague, conclusory allegation isinadequate. At a minimum, Martinez must identify the specific "deficiencies"­ofDNA evidence in general and the lab in particular­to which he alludes. Equally,he must tell us how these alleged deficiencies are relevant to this case and,critically, how they would have made a difference in the outcome of the trial.

When an ineffective assistance claim centers on a failure to investigate andelicit testimony from witnesses, the petitioner must "demonstrate, with someprecision, the content of the testimony they would have given at trial." Lawrencev. Armontrout, 900 F.2d 127, 130 (8th Cir. 1990) (quotation omitted). The lackof a specific, affirmative showing of any exculpatory evidence leaves Martinez'sclaim well short of the prejudice required by Strickland. See Patel v. UnitedStates, 19 F.3d 1231, 1237 (7th Cir. 1994) (holding no prejudice to petitioner whofailed to make specific, affirmative showing that absent witness's testimonywould have affected outcome of trial); see also Foster v. Ward, 182 F.3d1177,1185 (10th Cir. 1999) (concluding that defense counsel's failure to contact orinvestigate alibi witnesses insufficient to establish prejudice), cert. denied,120 S. Ct. 1438 (2000). In light of our conclusion that Martinez has notestablished prejudice, we end our Strickland analysis. See id. at 1184.

Martinez's second instance of alleged constitutionally inadequaterepresentation stems from what he says was counsel's failure to contact orinvestigate certain exculpatory witnesses. Martinez claims his trial lawyerrefused to contact specific individuals "who had information relevant to thecontext within which the events [at the wedding] occurred." Appellant Br. at 17. According to Martinez, these potential witnesses, in whose presence Martinezpassed much of the wedding day, would have testified that Martinez spenta substantial part of the day drinking beer. They also would have assured jurorsthat Martinez was not, as the prosecution contended, an uninvited guest at thewedding, corroborating Martinez's testimony on this point. Martinez urges thata willful ignorance of these facts "deprived" counsel of "the knowledge andinformation needed to make an informed decision as to whether these witnesseswould have been helpful at trial." Id. at 17-18.

We fail to see the relevance of any testimony from Martinez's drinkingcompanions. Nor do we see how knowledge on the part of defense counsel aboutthe amount of beer his client drank on the day of the wedding, or whether hisclient was invited to the reception or an interloper, would have altered counsel'sperformance or the outcome at trial. (We note that Martinez mentioned severaltimes during his testimony that he had been drinking before the wedding receptionand, in addition, that he consumed ten to twelve cups of beer at the party.) Again,Martinez has not made the showing necessary to establish prejudice.

Martinez also claims his lawyer was ineffective because he did not calla witness who says she overheard, in a courtroom hallway, a prosecution witnessdisavow a statement she (the prosecution witness) had recently made to jurors. Corroborating the victim's testimony, the prosecution witness told the jury thatshe saw Martinez leave the wedding reception with the young girl in hand. According to Martinez, this testimony could have been impeached by his witness,who reportedly would have revealed that she heard the prosecution witness admitthat her in-court identification of Martinez was uncertain. Martinez, as notedabove, denies that he secreted the victim away from the wedding party, andclaims instead that the victim approached him shortly after he left the reception.(1)

We do not believe that the testimony of Martinez's potential impeachmentwitness would have made a difference at trial. This is so even if we discountentirely the prosecution witness's identification of Martinez as the man she sawleading the victim away from the wedding party. Martinez does not explain howhis proposed impeachment evidence would weaken the incriminating inferencesdrawn from, among other evidence: (1) the victim's account of the assault andher identification of Martinez as the assailant; (2) the DNA evidence linkingMartinez to the crime; (3) the physical injuries the victim suffered as a result offorced penetration, her ripped underwear, and the bloodied clothing discoveredin Martinez's home. Furthermore, Martinez's own testimony places him at thecrime scene, and he offers a rather implausible account of how his semen andblood made their way onto the victim's clothing. We strongly doubt that thetrial turned on whether the victim was taken to the crime scene, or, as Martinezsays, he encountered her there by chance. Unable to envision a reasonablepossibility that the latter would have resulted in a different outcome at trial,we must deny relief.(2)

Double Jeopardy

Martinez next argues that his conviction on two counts of criminal sexualpenetration­one for digital, the other for penile penetration­twice placed himin jeopardy for the same offense. The Double Jeopardy Clause of the FifthAmendment provides that no person shall "be subject for the same offense to betwice put in jeopardy of life or limb." U.S. Const. amend. V, The DoubleJeopardy Clause affords three distinct protections to a criminal defendant: (1) protection against a second prosecution for the same offense after acquittal;(2) protection against a second prosecution for the same offense after conviction;and (3) protection against multiple criminal punishments for the same offense. Jones v. Thomas, 491 U.S. 376, 380-81 (1989).

The third protection is at issue here. This protection is restricted to"ensuring that the sentencing discretion of courts is confined to the limitsestablished by the legislature." Cummings v. Evans, 161 F.3d 610, 614 (10th Cir.1998) (quotation omitted). Where the same act violates two statutes, the test todetermine whether the punishments are multiple­and thus in violation of the FifthAmendment­is "essentially one of legislative intent." Id. (quotation omitted). Thus, "if the legislature intended cumulative punishments for both violations andthe sentences are imposed in the same proceeding, no double jeopardy violationarises." Dennis v. Poppel, 222 F.3d 1245, 1255 (10th Cir. 2000). We apply theso-called Blockburger test only where legislative intent is unclear. Id.(3)

"In assessing whether a state legislature intended to prescribe cumulativepunishments for a single criminal incident, we are bound by a state court'sdetermination of the legislature's intent." Cummings, 161 F.3d at 615; see alsoLucero v. Kerby, 133 F.3d 1299, 1316 (10th Cir. 1998) (holding that federal courtin habeas proceeding should defer to state court's determination of separateoffenses). Here, the New Mexico Court of Appeals rejected Martinez's doublejeopardy claim, applying the factors set forth by the New Mexico Supreme Courtfor determining the legislature's intent. See R. Doc. 11, at Ex. M, pp. 5-7. Thestate appellate court noted, in particular, that Martinez repositioned the victimbetween the two penetrations and, deferring to an express finding by the jury,ruled that he acted with different impulses during the two attacks. Id. at p. 6. Under these circumstances, the court said, the legislature intended two offenses. Id. at 7. The New Mexico Supreme Court denied certiorari. R. Doc. 11, atEx. O. The determination by the New Mexico courts to look to the legislature'sintent for purposes of resolving this double jeopardy claim was an appropriateapplication of federal law. As such, Martinez is not entitled to habeas reliefunder 28 U.S.C. § 2254(d)(1). Furthermore, this court has reviewed Martinez'srequest for a certificate of appealability, his appellate briefs, and the record. Thatreview leads us to conclude that Martinez has not overcome the deference thiscourt affords a state court's determination of state legislative intent as to whethermultiple punishments were intended. See Lucero, 133 F.3d at 1316.

Evidentiary Hearing

Finally, we address Martinez's request for an evidentiary hearing. Because he attempted to develop the factual basis of his claims in state court,28 U.S.C. § 2254(e)(2) does not apply. Miller v. Champion, 161F.3d 1249,1253 (10th Cir. 1998). In consequence, he is entitled to an evidentiary hearingonly if he can show that "his allegations, if true and if not contravened by theexisting factual record, would entitle him to habeas relief." Id. Martinez has notmade this showing.

We DENY Martinez's request for a certificate of appealability andDISMISS the appeal.

Entered for the Court

Michael R. Murphy

Circuit Judge

FOOTNOTES

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

*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. Perhaps because Martinez firstmentioned the existence of his would-beimpeachment witness in his reply brief below, the magistrate judge did notdiscuss the issue in her report and recommendation.

2. Though he does not challenge it onappeal, our conclusion applies withequal force to the kidnaping charge for which Martinez was convicted. The jurywas not required to find that he took the victim away from the party, since underNew Mexico law kidnaping does not require asportation. State v. McGuire,795 P.2d 996, 1000 (N.M. 1990). The manner in which the victim arrived at thecrime scene is therefore irrelevant.

3. In Blockburger v.United States, 284 U.S. 299, 304 (1932), the SupremeCourt held that the proper way to determine whether there are two offenses oronly one is to ask whether each requires proof of a fact that the other does not.

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