                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUL 17 2001
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JOSE LUIS CARLOS MARTINEZ,

                  Petitioner-Appellant,

    v.                                                    No. 00-2445
                                                 (D.C. No. CIV-99-672 LH/LCS)
    LAWRENCE A. TAFOYA, Warden;                             (D. N.M.)
    SOUTHERN NEW MEXICO
    CORRECTIONAL FACILITY;
    ATTORNEY GENERAL FOR
    THE STATE OF NEW MEXICO,

                  Respondents-Appellees.


                              ORDER AND JUDGMENT          *




Before HENRY , ANDERSON , and MURPHY , 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      This order and judgment is not binding precedent, except under the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.
      Jose Carlos Martinez, a New Mexico state prisoner, seeks a certificate of

appealability to pursue an appeal from an order of the district court denying his

petition for habeas corpus. Because he has failed to make “a substantial showing

of 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 and

one count of kidnaping. His convictions arose from the rape of a ten-year-old

girl, 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 did

not recognize grabbed her from a swing and lead her through the darkness to an

isolated spot in the sagebrush desert behind the reception area. He then pushed

her 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 rape

examination revealed vaginal tearing; such an injury, explained the treating

physician, is consistent with forcible penetration. DNA testing confirmed that

stains found on the victim’s clothing were Martinez’s semen and blood. The

victim’s underwear was ripped, her face bruised and dirtied. After seeing



                                         -2-
a videotape of the reception, the victim identified Martinez as the assailant, an

identification she repeated at trial.

      Additionally, Martinez’s telephone pager was discovered at the crime

scene, as was a plastic cup similar to those used at the wedding party. A search

of his trailer turned up the clothes he wore to the party; they were wrapped in

a 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.

He insisted that he encountered the victim behind the reception area by chance,

and claims he did no more than assent to her demand for a kiss. His defense at

trial relied heavily on evidence that a pubic hair discovered on one of the

victim’s sandals was not his.

      Accompanied by a request for an evidentiary hearing, Martinez’s habeas

petition raised three claims. The magistrate judge deemed one of them

abandoned, a ruling Martinez does not challenge on appeal. With respect to

Martinez’s two remaining claims–ineffective assistance of counsel and violation

of the rule against double jeopardy–the magistrate judge recommended denying

relief. The magistrate judge, whose recommendation the district court adopted in

full, did not address Martinez’s request for an evidentiary hearing. On appeal,

Martinez renews his ineffective assistance and double jeopardy claims, as well as

his request for an evidentiary hearing.


                                          -3-
Ineffective Assistance of Counsel

      To prevail on an ineffective assistance of counsel claim, a petitioner

must demonstrate that (1) representation fell below an objective standard of

reasonableness, and (2) counsel’s deficient performance prejudiced the

defendant. See Strickland v. Washington , 466 U.S. 668, 687 (1984). With respect

to the first prong, Martinez must show that defense counsel’s performance was

not simply wrong, but instead was completely unreasonable.      See Hoxsie v.

Kerby , 108 F.3d 1239, 1246 (10th Cir. 1997). To show prejudice, Martinez must

establish that, but for counsel’s errors, there was a reasonable probability that the

outcome of his trial would have been different.   See id . at 1245.

      Moreover, because Martinez filed his habeas petition after the effective

date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

our review of his ineffective assistance of counsel claim is governed by the

revised standards of review set out in 28 U.S.C. § 2254(d). This standard allows

a federal court to grant habeas relief only if the relevant state court decision was

either “contrary to” or “an unreasonable application of” established Supreme

Court precedent, or “resulted in a decision that was based on an unreasonable

determination of the facts.” 28 U.S.C. § 2254(d)(1) and (2). We conclude that

the New Mexico state court’s denial of Martinez’s claim was neither contrary to




                                           -4-
nor an unreasonable application of Supreme Court precedent, nor was it the result

of an unreasonable determination of the facts.

       Martinez alleges two instances of what he claims was constitutionally

deficient representation. First, he points to trial counsel’s failure to retain an

expert to challenge the prosecution’s DNA evidence. Second, he claims that

defense counsel ignored potentially exculpatory witnesses.

       Turning to the first allegation, Martinez argues that counsel’s decision

against calling a DNA expert at trial violated the   Strickland standard. We

disagree. Martinez does not deny that it was his DNA found on the victim’s

clothing. Rather, he offers an innocent explanation. As he told the jury, the

victim approached him behind the reception area and asked for a kiss. When he

agreed, she bit his tongue, drawing blood. He surmised that some of this blood

made its way onto her clothes. He also testified that shortly before she

approached he had masturbated, and that during their kiss some of his semen was

transferred to her clothing. Given this testimony, there is no reason to believe

that a DNA expert witness could have assisted the defense; indeed challenging

the DNA evidence would have undermined Martinez’s account of the incident.

       No doubt recognizing this dilemma, the thrust of Martinez’s argument is

that counsel should have retained a DNA expert       before trial, to assist the defense

in developing an alternate strategy to combat the prosecution’s DNA evidence.


                                            -5-
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 choice

but to mount an ultimately misguided defense.

       This may be so, but Martinez offers no evidence–here or below–to

undermine our confidence in the DNA evidence presented at trial. The most he

can say is that defense counsel did not seek an expert to highlight “the various

deficiencies of DNA analysis generally and the deficiencies of the particular lab

involved in the case.” Appellant Br. at 17. This vague, conclusory allegation is

inadequate. At a minimum, Martinez must identify the specific “deficiencies”–of

DNA evidence in general and the lab in particular–to 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 and

elicit testimony from witnesses, the petitioner must “demonstrate, with some

precision, the content of the testimony they would have given at trial.”      Lawrence

v. Armontrout , 900 F.2d 127, 130 (8th Cir. 1990) (quotation omitted). The lack

of a specific, affirmative showing of any exculpatory evidence leaves Martinez’s

claim well short of the prejudice required by     Strickland . See Patel v. United

States , 19 F.3d 1231, 1237 (7th Cir. 1994) (holding no prejudice to petitioner

who failed to make specific, affirmative showing that absent witness’s testimony


                                            -6-
would have affected outcome of trial);      see also Foster v. Ward , 182 F.3d 1177,

1185 (10th Cir. 1999) (concluding that defense counsel’s failure to contact or

investigate alibi witnesses insufficient to establish prejudice)   , cert. denied ,

120 S. Ct. 1438 (2000).    In light of our conclusion that Martinez has not

established prejudice, we end our     Strickland analysis. See id. at 1184.

       Martinez’s second instance of alleged constitutionally inadequate

representation stems from what he says was counsel’s failure to contact or

investigate certain exculpatory witnesses. Martinez claims his trial lawyer

refused to contact specific individuals “who had information relevant to the

context within which the events [at the wedding] occurred.” Appellant Br. at 17.

According to Martinez, these potential witnesses, in whose presence Martinez

passed much of the wedding day, would have testified that Martinez spent

a substantial part of the day drinking beer. They also would have assured jurors

that Martinez was not, as the prosecution contended, an uninvited guest at the

wedding, corroborating Martinez’s testimony on this point. Martinez urges that

a willful ignorance of these facts “deprived” counsel of “the knowledge and

information needed to make an informed decision as to whether these witnesses

would have been helpful at trial.”     Id. at 17-18.

       We fail to see the relevance of any testimony from Martinez’s drinking

companions. Nor do we see how knowledge on the part of defense counsel about


                                             -7-
the amount of beer his client drank on the day of the wedding, or whether his

client was invited to the reception or an interloper, would have altered counsel’s

performance or the outcome at trial. (We note that Martinez mentioned several

times during his testimony that he had been drinking before the wedding

reception and, 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 call

a witness who says she overheard, in a courtroom hallway, a prosecution witness

disavow a statement she (the prosecution witness) had recently made to jurors.

Corroborating the victim’s testimony, the prosecution witness told the jury that

she 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 admit

that her in-court identification of Martinez was uncertain. Martinez, as noted

above, denies that he secreted the victim away from the wedding party, and

claims instead that the victim approached him shortly after he left the reception.   1




1
      Perhaps because Martinez first mentioned the existence of his would-be
impeachment witness in his reply brief below, the magistrate judge did not
discuss the issue in her report and recommendation.

                                            -8-
      We do not believe that the testimony of Martinez’s potential impeachment

witness would have made a difference at trial. This is so even if we discount

entirely the prosecution witness’s identification of Martinez as the man she saw

leading the victim away from the wedding party. Martinez does not explain how

his proposed impeachment evidence would weaken the incriminating inferences

drawn from, among other evidence: (1) the victim’s account of the assault and

her identification of Martinez as the assailant; (2) the DNA evidence linking

Martinez to the crime; (3) the physical injuries the victim suffered as a result of

forced penetration, her ripped underwear, and the bloodied clothing discovered

in Martinez’s home. Furthermore, Martinez’s own testimony places him at the

crime scene, and he offers a rather implausible account of how his semen and

blood made their way onto the victim’s clothing. We strongly doubt that the

trial turned on whether the victim was taken to the crime scene, or, as Martinez

says, he encountered her there by chance. Unable to envision a reasonable

possibility that the latter would have resulted in a different outcome at trial,

we must deny relief.   2




2
      Though he does not challenge it on appeal, our conclusion applies with
equal force to the kidnaping charge for which Martinez was convicted. The jury
was not required to find that he took the victim away from the party, since under
New 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 the
crime scene is therefore irrelevant.

                                          -9-
Double Jeopardy

       Martinez next argues that his conviction on two counts of criminal sexual

penetration–one for digital, the other for penile penetration–twice placed him

in jeopardy for the same offense. The Double Jeopardy Clause of the Fifth

Amendment provides that no person shall “be subject for the same offense to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V. The Double

Jeopardy 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 limits

established 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 to

determine whether the punishments are multiple–and thus in violation of the Fifth

Amendment–is “essentially one of legislative intent.”    Id. (quotation omitted).

Thus, “if the legislature intended cumulative punishments for both violations and

the sentences are imposed in the same proceeding, no double jeopardy violation



                                          -10-
arises.” Dennis v. Poppel , 222 F.3d 1245, 1255 (10th Cir. 2000). We apply the

so-called Blockburger test only where legislative intent is unclear.    Id. 3

       “In assessing whether a state legislature intended to prescribe cumulative

punishments for a single criminal incident, we are bound by a state court’s

determination of the legislature’s intent.”      Cummings , 161 F.3d at 615; see also

Lucero v. Kerby , 133 F.3d 1299, 1316 (10th Cir. 1998) (holding that federal

court in habeas proceeding should defer to state court’s determination of separate

offenses). Here, the New Mexico Court of Appeals rejected Martinez’s double

jeopardy claim, applying the factors set forth by the New Mexico Supreme Court

for determining the legislature’s intent.      See R. Doc. 11, at Ex. M, pp. 5-7. The

state appellate court noted, in particular, that Martinez repositioned the victim

between 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, at Ex.

O.     The determination by the New Mexico courts to look to the legislature’s

intent for purposes of resolving this double jeopardy claim was an appropriate

application of federal law. As such, Martinez is not entitled to habeas relief


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

                                              -11-
under 28 U.S.C. § 2254(d)(1). Furthermore, this court has reviewed Martinez’s

request for a certificate of appealability, his appellate briefs, and the record.

That review leads us to conclude that Martinez has not overcome the deference

this court affords a state court’s determination of state legislative intent as to

whether multiple 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 , 161 F.3d 1249,

1253 (10th Cir. 1998). In consequence, he is entitled to an evidentiary hearing

only if he can show that “his allegations, if true and if not contravened by the

existing factual record, would entitle him to habeas relief.”    Id. Martinez has not

made this showing.

       We DENY Martinez’s request for a certificate of appealability and

DISMISS the appeal.


                                                         Entered for the Court


                                                         Michael R. Murphy
                                                         Circuit Judge




                                            -12-
