                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                   December 18, 2012
                      UNITED STATES COURT OF APPEALS
                                                              Elisabeth A. Shumaker
                                   TENTH CIRCUIT                  Clerk of Court



 MERLE RAMONE,

                 Petitioner - Appellant,                No. 12-2131
          v.                                         (D. New Mexico)
 ERASMO BRAVO, Warden;                      (D.C. No. 1:11-CV-00818-JCH-SMV)
 ATTORNEY GENERAL OF THE
 STATE OF NEW MEXICO,

                 Respondents - Appellees.


               ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, ANDERSON, and HARTZ, Circuit Judges.


      Defendant Merle Ramone, a New Mexico prisoner, applied for relief under

28 U.S.C. § 2254 in the United States District Court for the District of New

Mexico. The district court denied his application. Defendant now seeks a

certificate of appealability (COA) from this court to allow him to appeal the

district court’s decision. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal

denial of § 2254 relief). We deny the application for a COA and dismiss the

appeal.

      In 2003 Defendant was convicted in state court on two counts of first-

degree murder; five counts of armed robbery, attempted armed robbery, and

conspiracy to commit armed robbery; four counts of assault; and one count of
resisting an officer. He was sentenced to two consecutive life terms plus a day

less than 29 years.

      About a week before trial his counsel prepared a witness list, which

included an expert witness who allegedly would have testified that Defendant’s

blood-alcohol level at the time of the crimes was so high that he may not have

been capable of forming the specific intent to commit the crimes. Under NMRA

Rule 5-062(F), if a defendant wishes to call an expert witness to testify that he

could not form specific intent, he must notify the prosecution within 20 days of

his arraignment unless good cause for delay is shown. Defendant, however, did

not notify the prosecution of his intent to call the expert until almost two years

after his arraignment. The trial court granted the prosecution’s motion in limine

to exclude the testimony. When Defendant later requested that the expert be

permitted to testify to Defendant’s blood-alcohol level at the time of his offenses,

the prosecutor additionally objected that the expert was not qualified to testify to

the matter. The court denied the request to allow the testimony.

      Defendant presented other evidence at trial of his intoxicated state while

committing his crimes—his own testimony and eyewitness testimony. At

Defendant’s request the trial court gave an instruction on the relationship between

intoxication and specific intent.

      Defendant filed for habeas corpus relief in state district court, contending,

among other things, that he had been deprived of constitutionally effective

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assistance of trial counsel because his attorney’s late disclosure of the expert

witness had prevented him from substantiating his intoxication defense. The

court denied relief. It held that Defendant had failed to show that his trial

counsel’s late disclosure constituted deficient performance, because it could have

been part of a reasonable strategic decision to focus on a theory that Defendant

was not the perpetrator. And it ruled that exclusion of the expert’s testimony did

not affect the outcome of the trial, because “Defendant was permitted to present

evidence to the jury of a diminished capacity defense based on intoxication[;]

[t]he jury was given instructions on intoxication as related to specific intent crime

[sic] and was instructed that intoxication could keep [Defendant] from being able

to form the specific intent to commit” some of the crimes charged; and there was

“overwhelming evidence against [Defendant], including evidence that he did not

appear so intoxicated as not to be able to form specific intent.” R., pt. 1 at 60.

The New Mexico Supreme Court declined review of the denial of the habeas

petition.

      Defendant then filed his § 2254 application on the ineffective-assistance

claim. (He also raised a double-jeopardy claim and a claim based on alleged

errors in the jury instructions, but he dismissed both claims voluntarily for failure

to exhaust.) The district court adopted the magistrate judge’s proposed findings

and recommended disposition that Defendant had failed to overcome the




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deference due the state court’s rulings that Defendant had shown neither deficient

performance nor prejudice.

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in a state court, a

federal court can grant habeas relief only if the applicant establishes that the

state-court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). “AEDPA’s deferential treatment of state

court decisions must be incorporated into our consideration of [Defendant’s]

request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      To establish a claim of ineffective assistance of counsel, Defendant first

had the burden of overcoming “a strong presumption that counsel’s conduct falls

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within the wide range of reasonable professional assistance,” Strickland v.

Washington, 466 U.S. 668, 689 (1984), by demonstrating that his counsel’s

performance fell below “an objective standard of reasonableness,” id. at 688.

Second, Defendant had to demonstrate “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id at 694. We have discretion to consider the performance and

prejudice prongs in either order, and if Defendant fails to meet his burden on one

prong, we need not consider the other. See id. at 697.

      The district court appropriately deferred to the state court’s holding that

Defendant had failed to show that his defense was prejudiced by the exclusion of

the expert witness. Because reasonable jurists could not debate the correctness of

the district court’s ruling, we DENY the application for a COA and DISMISS the

appeal.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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