                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 12 1998
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    ERNIE SACOMAN,

                Petitioner-Appellant,

    v.                                                   No. 97-2148
                                                   (D.C. No. CIV-96-128-JP)
    JOE WILLIAMS, Warden;                                 (D. N.M.)
    ATTORNEY GENERAL OF THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.




                            ORDER AND JUDGMENT *



Before PORFILIO, KELLY, and HENRY, 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); 10th Cir. R. 34.1.9. 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      This order and judgment is not binding precedent, except under the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.
      Petitioner appeals the district court’s dismissal of his 28 U.S.C. § 2254

petition for writ of habeas corpus. Petitioner was convicted in New Mexico state

court of first-degree murder, conspiracy to commit murder, armed robbery,

conspiracy to commit armed robbery and tampering with evidence. His

conviction was affirmed on appeal, and petitioner has exhausted his state post-

conviction remedies. Petitioner requested habeas corpus relief in the district

court, and the district court dismissed his petition, adopting the findings and

recommendation of the magistrate judge. On de novo review, we agree with the

district court’s legal conclusions and we find no clear error in its factual findings.

See Brewer v. Reynolds, 51 F.3d 1519, 1522 (10th Cir. 1995). 1

      Petitioner presents five arguments on appeal: (1) juror misconduct violated

his constitutional right to a fair trial and necessitates a new trial; (2) there was

insufficient evidence to support his conviction; (3) the trial court violated his

constitutional right to a fair trial by refusing to order the state to produce the

psychological records of a witness who testified against petitioner; (4) his right to

a fair trial was violated because the prosecution questioned petitioner about a



1
       Because the petition was filed before the effective date of the Antiterrorism
and Effective Death Penalty Act of 1996, no certificate of appealability is
necessary. See United States v. Kunzman, 125 F.3d 1363, 1364 n.2 (10th Cir.
1997). We, therefore, construe petitioner’s notice of appeal as requesting a
certificate of probable cause. See Fed. R. App. P. 22(b) (prior to amendment by
AEDPA).

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previous juvenile adjudication; and (5) ineffective assistance of counsel violated

his rights under the Sixth Amendment.

      At trial, petitioner presented an alibi defense that he was at work as a

busboy at the time of the murder. During deliberations, one juror gave a factual

account of his experience as a busboy, and a second juror fabricated a story about

a conversation she had with a payroll clerk about paying employees even though

the clerk couldn’t confirm the hours worked. On direct appeal, the New Mexico

Supreme Court held that these incidents introduced “extraneous information” into

the jury deliberations, R. Vol. I, tab 12, Ex. E at 5, but that petitioner was not

prejudiced by the misconduct. The trial court held a hearing and found that the

extraneous information was imparted to the jury after they had unanimously

agreed that petitioner was not at work at the time of the murder. This finding of

fact by the state court after hearing is presumed correct, see 28 U.S.C. § 2254(d),

and petitioner does not challenge the sufficiency of the evidence upon which this

finding was based. Therefore, the district court’s conclusion that petitioner

suffered no prejudice as a result of the injection of extraneous information during

the jury deliberations, because of the timing, is correct. See Brecht v.

Abrahamson, 507 U.S. 619, 637, 638 (1993) (holding that trial errors are

collaterally reviewed to determine whether they had “substantial and injurious

effect or influence in determining the jury’s verdict”).


                                          -3-
      Petitioner characterizes his next argument as disputing the sufficiency of

the evidence supporting his conviction. In fact, petitioner’s argument takes issue

with the jury’s credibility determinations and the weight it afforded the

conflicting evidence presented. Petitioner points to the evidence in support of his

alibi defense and argues that the jury should have reached a different conclusion

in light of that evidence. Review of the sufficiency of the evidence is

      sharply limited and a court faced with a record of historical facts that
      supports conflicting inferences must presume--even if it does not
      affirmatively appear in the record--that the trier of fact resolved any
      such conflicts in favor of the prosecution, and must defer to that
      resolution. The [c]ourt may not weigh conflicting evidence nor
      consider the credibility of witnesses. Rather, the [c]ourt must accept
      the jury’s resolution of the evidence as long as it is within the bounds
      of reason.

Messer v. Roberts, 74 F.3d 1009, 1013 (10th Cir. 1996) (quotations omitted).

      Petitioner acknowledges that, in addition to his alibi evidence, the jury

heard testimony from two witnesses, who were originally charged as

codefendants, that petitioner shot the victim in the course of a robbery gone

wrong. There was also testimony from other witnesses that, on the day after the

murder, petitioner reenacted how he shot the victim. The jury chose to credit the

testimony against petitioner and did not believe his alibi defense. Petitioner does

not dispute the sufficiency of the evidence the jury chose to credit in convicting

him, he argues that the jury credited the wrong evidence. We will not weigh

conflicting evidence or consider the credibility of witnesses. See id.

                                         -4-
      Next, petitioner argues constitutional error regarding two evidentiary

matters. He claims he was denied a fair trial when the trial court did not grant his

request to discover, for use at trial, psychological records of one of the former

codefendants who testified against him. The trial court reviewed the

psychological records in camera and denied petitioner’s request on the basis of

relevancy. Petitioner also argues that the prosecutor’s questions on cross-

examination about why he left high school induced him to testify regarding a

prior juvenile adjudication.

      “[W]e will not question the evidentiary or procedural rulings of the state

court unless [petitioner] can show that because of the court’s actions, his trial, as

a whole, was rendered fundamentally unfair.” Maes v. Thomas, 46 F.3d 979, 987

(10th Cir. 1995) (quotation omitted). Petitioner has failed to make such a

showing. Petitioner details in his brief on appeal that his counsel effectively

utilized cross-examination for impeachment purposes, and he does not show how

his lack of discovery of the psychological records rendered his trial fundamentally

unfair. Further, petitioner does not show that his response on cross-examination

revealing a juvenile adjudication was prompted by the questioning, nor does he

show that the revelation resulted in a fundamentally unfair trial.

      Finally, petitioner claims he was denied his constitutional right to effective

assistance of counsel. To that end, petitioner must show both that his attorney’s


                                          -5-
performance fell below an objective standard of reasonableness and that

petitioner’s defense was prejudiced by the deficient performance. See Strickland

v. Washington, 466 U.S. 668, 687, 688 (1984). Petitioner complains that

counsel’s demeanor was uncaring and lacking in professionalism, as compared to

petitioner’s first trial, which ended in a mistrial. He also claims counsel failed to

object at appropriate times and that counsel’s failure to confer with and prepare

petitioner before the second trial was the cause of petitioner giving answers on

cross-examination that went beyond the scope of the question. Petitioner also

argues that counsel’s closing argument was deficient because counsel did not

point out that the evidence proved petitioner’s innocence. Other than the

conclusory statement that the outcome of the trial would have been different,

petitioner has not shown how the alleged errors prejudiced his defense, and

neither has petitioner shown that counsel’s performance fell below an objective

standard of reasonableness.

      Petitioner’s application for a certificate of probable cause is DENIED, and

the appeal is DISMISSED. The mandate shall issue forthwith.



                                                     Entered for the Court



                                                     Robert H. Henry
                                                     Circuit Judge

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