                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAY 16 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    MARCOS LUCERO,

                Plaintiff-Appellant,

    v.                                                   No. 03-2289
                                              (D.C. No. CIV-02-799 MCA/KBM)
    TIM LEMASTER, Warden, New                             (D. N.M.)
    Mexico State Penitentiary;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Defendants-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , BALDOCK , and KELLY , 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.




*
      This order and judgment is not binding precedent, except under the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.
      Marcos Lucero appeals from the denial of his petition for a writ of habeas

corpus. We affirm.

      In 1996, Lucero was convicted of first degree murder and related offenses.

After the New Mexico Supreme Court affirmed his convictions and his collateral

review application in state court was denied, Lucero filed a habeas corpus petition

in federal district court. A magistrate judge recommended that the petition be

denied, and the district court adopted this recommendation. Lucero then

appealed. This court granted a certificate of appealability limited to “the issue of

whether Lucero’s trial counsel was ineffective for failing to present a defense of

actual innocence.” Lucero v. LeMaster, No. 03-2289 (10th Cir. June 3, 2004)

(Order). The court subsequently expanded the certificate of appealability to

include the question of whether “appellate counsel was ineffective for failing to

challenge the allegedly inconsistent verdicts returned by the jury.” Lucero v.

LeMaster, No. 03-2289 (10th Cir. Dec. 17, 2004) (Order).

      In order to demonstrate that his attorneys were ineffective, Lucero must

make two showings:

      First, [he] must show that counsel’s performance was deficient....
      Second, [he] must show that the deficient performance prejudiced the
      defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Moreover, because these

claims were adjudicated on the merits in state court, Lucero is not entitled to


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federal habeas relief unless the state court’s decision “was contrary to, or

involved an unreasonable application of, clearly established Federal law” or “was

based on an unreasonable determination of the facts in light of the evidence

presented.” 28 U.S.C. § 2254(d).

      Lucero first asserts that it was ineffective for his attorneys to rely on a

strategy of self-defense rather than trying to refute the evidence that Lucero

perpetrated the homicide underlying this prosecution. According to the evidence

at trial, somebody–the evidence pointed to Lucero–fired a warning shot during an

altercation and then fired the shot that killed the victim. Because the warning

shot was the first shot fired, the trial court concluded that the shooter was the

initial aggressor; the court therefore refused to instruct the jury about self-

defense. The New Mexico Supreme Court affirmed this refusal. See State v.

Lucero, 972 P.2d 1143, 1145-46 (N.M. 1998). Lucero contends that his lawyers

should have anticipated that a self-defense claim would fail as a matter of law and

should instead have tried to demonstrate that the offenses charged against Lucero

were in fact committed by his friend.

      The state habeas court rejected this claim on the grounds that the law

relating to warning shots was not clear before the Lucero decision and that

Lucero’s preferred defense had no better prospects for success than the defense

actually presented. These conclusions are well-supported. We have not found


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any New Mexico decision prior to Lucero that discussed warning shots in the

context of a self-defense claim. Moreover, appellate opinions from other

jurisdictions are mixed, with some finding sufficient evidence to support a claim

of self-defense even where the defendant fired a warning shot before any other

shot was fired. See, e.g., State v. Hill, 433 S.E.2d 848, 849 (S.C. 1993). Finally,

Lucero’s proposal to take the stand and deny that he was the shooter would have

required him to repudiate his own inculpatory statements to the police; the state

habeas court could reasonably conclude that the jury was not likely to find such

testimony credible.

      Lucero’s second assertion arises from the jury’s finding that the single

killing committed by Lucero constituted both deliberate murder and depraved

mind murder. Lucero contends that these alternative theories underlying his first-

degree murder conviction were logically irreconcilable and that his appellate

counsel provided ineffective assistance by failing to challenge this defect in the

verdict.

      The State maintains that this claim is procedurally defaulted. We disagree.

Lucero raised this ineffective assistance claim in state collateral review

proceedings, and the state court denied relief without invoking any state

procedural rule barring review. In the absence of a plain statement applying a




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state procedural bar, we will not deem the claim defaulted. See Klein v. Neal,

45 F.3d 1395, 1398-99 (10th Cir. 1995).

      Although the claim is not defaulted, Lucero is not entitled to relief. Lucero

is correct that, under New Mexico law, a person who acts with a depraved mind

necessarily lacks the intent required for deliberate murder. See State v. Johnson,

707 P.2d 1174, 1178 (N.M. Ct. App. 1985). At Lucero’s trial, however, the jury

was erroneously instructed that these two forms of first degree murder were not

mutually exclusive and that the jury should therefore return a verdict as to both

theories. Lucero has not challenged either these instructions or defense counsel’s

failure to object to them.

      Furthermore, the evidence presented at trial could reasonably be construed

to establish either deliberate murder or depraved mind murder. As recounted by

the magistrate judge, the evidence at trial established that Lucero fired a shot

across a crowded field in order to kill a specific victim; the shot, however, struck

and killed a different person. This evidence would support a conviction for

deliberate murder on a transferred intent theory. It could also support a

conviction for depraved mind murder, because Lucero never intended to kill the

person who was actually struck by his bullet but his conduct was “greatly

dangerous to the lives of others, indicating a depraved mind regardless of human

life,” N.M. Stat. Ann. § 30-2-1(A)(3). In light of this evidence, as well as the


                                          -5-
instruction stating that deliberate murder and depraved mind murder are not

mutually exclusive, the record does not support the inference that the jury

misunderstood its charge and produced an incoherent verdict. Accordingly,

Lucero would not be entitled to relief from this verdict under either federal law or

New Mexico law. See Masoner v. Thurman, 996 F.2d 1003, 1005 (9th Cir. 1993);

State v. Fernandez, 875 P.2d 1104, 1111 (N.M. Ct. App. 1994). It follows that

Lucero’s attorneys were not ineffective in failing to challenge the verdict on

appeal.

      For these reasons, we hold that the state court’s conclusions were not

unreasonable and that the district court properly denied habeas relief. The

judgment of the district court is therefore AFFIRMED.



                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge




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