                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              June 6, 2005
                                    TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 TOM LEE BROWN,

          Petitioner - Appellant,

 v.                                                       No. 04-2149
                                                       (D. New Mexico)
 LANE BLAIR, Warden, Torrance                  (D.Ct. No. CIV-03-1321 MV/ACT)
 County Detention Facility;
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before SEYMOUR, LUCERO, and O’BRIEN, 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.

      Tom Brown appeals pro se 1 seeking a certificate of appealability (COA)



      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
from the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas

corpus. The district court granted Brown’s motion to proceed in forma pauperis.

There being no basis for an appeal, we deny COA.

                                    Background

      Brown was convicted on January 7, 2002, of forgery and fraud in the Third

Judicial District Court, Dona Ana County, New Mexico. He was sentenced to

eleven years imprisonment and two years parole under New Mexico’s Habitual

Offender Act. Brown appealed his conviction to the New Mexico Court of

Appeals, which affirmed. Brown was then granted a writ of certiorari to the New

Mexico Supreme Court, but the writ was subsequently quashed. Thereafter,

Brown filed a § 2254 habeas petition in the United States District Court for the

District of New Mexico. He claimed, inter alia, that 1) his dual convictions for

fraud and forgery violated the double jeopardy clause; 2) there was insufficient

evidence to support his conviction; and 3) his trial counsel provided ineffective

assistance. The state Attorney General filed a motion to dismiss. The district

court referred the case to a United States Magistrate who recommended

dismissing the petition. Brown filed objections to the Magistrate’s proposed

findings. Over his objections, the district court adopted the recommendations and

dismissed the petition. On June 21, 2004, Brown filed a notice of appeal with this




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Court. 2 In his petition before this Court, Brown reasserts his double jeopardy,

insufficient evidence, and ineffective assistance of trial counsel claims.

                                        Analysis

      Unless this Court issues a COA, Brown may not appeal the dismissal of his

§ 2254 petition. 28 U.S.C. § 2253(c)(1)(A). “[Section] 2253(c) permits the

issuance of a COA only where a petitioner has made a ‘substantial showing of the

denial of a constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 336

(2003)(quoting § 2253(c)(2)). To make the requisite showing, a petitioner must

demonstrate “that reasonable jurists could debate whether . . . the petition should

have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” Id. (quotation marks and

citation omitted).

       With these principles in mind, we have carefully reviewed the record and

agree with the district court’s conclusions. The New Mexico Court of Appeals

considered and denied both Brown’s insufficient evidence and double jeopardy

claims on the merits. “[W]hen reviewing the merits of a claim already decided by

the state courts, we are bound to deny relief unless the state court’s decision ‘was

contrary to, or involved an unreasonable application of, clearly established



      2
         We presume the district court denied a COA and treat the notice of appeal as a
request for a COA. FED. R. APP. P. 22(b).

                                           -3-
Federal law, as determined by the Supreme Court.’” LaFevers v. Gibson, 182

F.3d 705, 711 (10th Cir. 1999) (quoting 28 U.S.C. § 2254(d)).

      In reviewing Brown’s double jeopardy claim, the New Mexico Court of

Appeals applied New Mexico law and evaluated whether the state legislature

intended to create separately punishable offenses by determining whether the two

crimes required proof of different elements. See Swafford v. New Mexico, 810

P.2d 1223, 1233-34 (N.M. 1991) (setting forth the appropriate analysis under

Blockburger v. United States, 284 U.S. 299 (1932)). The court concluded the

elements of forgery and fraud were separate and required different findings of

fact by the jury. This is consistent with and a reasonable application of federal

law. See Blockburger, 284 U.S. at 304; Whalen v. United States, 445 U.S. 684,

688-89 (1980).

      In evaluating the sufficiency of evidence underlying Brown’s conviction,

the New Mexico Court of Appeals examined the evidence to see whether

substantial direct or circumstantial evidence existed to support the conviction

beyond a reasonable doubt as to every element of the crime. See New Mexico v.

Apodaca, 887 P.2d 756, 759-60 (N.M. 1994). The court concluded all essential

elements of the crime were supported by direct or circumstantial evidence such

that a rationale trier of fact could conclude that each element had been proven

beyond a reasonable doubt. This too is consistent with and a reasonable


                                         -4-
application of federal law. See Jackson v. Virginia, 443 U.S. 307, 319 (1979)

(relevant question is whether, viewing the evidence in the light most favorable to

the prosecution, any rational trier of fact could find all essential elements proved

beyond a reasonable doubt).

       Finally, Brown argues his trial counsel was ineffective because he failed to

investigate his case and put on an adequate defense. Brown lists these

deficiencies as trial counsel’s failure to: (1) object to the jury instructions which

allowed Brown to be convicted of both fraud and forgery; (2) investigate or

adequately rebut the testimony of an investigator which was particularly damaging

to Brown’s case; (3) put on the testimony of defense witnesses; and (4) file a

motion in limine to suppress evidence of Brown’s prior convictions during

sentencing. 3

       To establish ineffective assistance of counsel, Brown must establish his

counsel’s deficient performance prejudiced his defense. Romano v. Gibson, 239

F.3d 1156, 1180 (10th Cir. 2001). To do this, he must demonstrate that but for

his counsel’s objectively deficient performance, there is a reasonable probability

the result would have been different. Id. We “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional


       3
         In his brief, Brown also contends that his trial counsel refused to allow him to
testify. Brown did not raise this issue in his habeas petition in the district court and we
decline to consider it here.

                                             -5-
assistance.” Strickland v. Washington, 466 U.S. 668, 689 (1984). Moreover,

“strategic choices made after thorough investigation of law and facts relevant to

plausible options are virtually unchallengeable.” Id. at 690.

      Brown’s ineffective assistance of counsel claim is also without merit.

Brown’s complaint about his counsel’s failure to object to the jury instructions is

premised on his belief that the counts of fraud and forgery are identical and

violate the double jeopardy clause. As noted above, this is not the case.

Therefore trial counsel’s failure to object to the jury instructions on this ground is

not unreasonable.

      Trial counsel’s failure to challenge the testimony of an investigating agent

is insufficient to establish ineffective assistance of counsel. The investigator

testified to an admission made by Brown that his wife had forged the check.

Brown complains his trial counsel did not challenge the fact that the admission

was not recorded or written down. Apparently, Brown believes that because an

admission is not recorded or written down it is inherently suspect and not

admissible. 4 This is not the law in New Mexico, however, and the New Mexico

Supreme Court declined to hear argument on the issue. Trial counsel’s decision

not to raise an unrecognized challenge to the admissibility of an admission was


      4
        In his brief to the New Mexico Supreme Court, Brown pointed to the Minnesota
Supreme Court opinion in Minnesota v. Scales, 518 N.W.2d 587, 592 (Minn. 1994) which
so holds.

                                          -6-
not unreasonable.

      Additionally, trial counsel’s decision not to present the testimony of

Brown’s suggested witnesses was not unreasonable because the proposed

witnesses’ testimony would not have gone to any material issue of guilt. As

pointed out by the trial court, none of the potential witnesses were directly

exculpatory. According to Brown, the witnesses would have testified that he did

not sign the forged check. However, forging a signature on a check is not

necessary to convict an individual of forgery. Under New Mexico law, all that is

required is that the defendant knowingly pass a forged check. See N.M. S TAT .

A NN . § 20-16-10(B). The refusal by Brown’s counsel to put on witnesses who

were not directly exculpatory was not unreasonable.

      Finally, trial counsel’s refusal to file a motion in limine to exclude prior

convictions during sentencing was not unreasonable in light of New Mexico’s

Habitual Offender Act, N.M. S TAT . A NN . § 31-18-17, which allows the

introduction of prior convictions during sentencing determinations. Brown does

not contest the validity of the prior convictions and there is no evidence in the

record that they were introduced to prove guilt. Consequently, counsel’s failure

to file a motion in limine to suppress the convictions was not unreasonable.




                                         -7-
We DENY Brown’s request for a COA and DISMISS the appeal.



                           Entered by the Court:

                           Terrence L. O’Brien
                           United States Circuit Judge




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