                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                September 3, 2008
                                TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                   Clerk of Court

 MAURICIO ARCHIE VARELA,

              Petitioner - Appellant,                    No. 08-2043
       v.                                             (D. New Mexico)
 STANLEY MOYA, Warden;                       (D.C. No. 6:07-cv-00456-BB-LCS)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Mauricio “Archie” Varela, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) so that he may appeal the denial by the United

States District Court for the District of New Mexico of his application for relief

under 28 U.S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA for state

prisoner to appeal). His application, liberally construed, raised three claims: (1)

that his right to due process was violated when the state court retroactively

defined “shooting at a dwelling” to include fatal shootings; (2) that his Sixth

Amendment right to confront the witnesses against him was violated when the

trial court admitted the written statement of an alleged co-conspirator who

testified that he did not remember making the statement; and (3) that his trial
counsel was ineffective in failing to raise the Sixth Amendment issue. The

district court denied his application, and denied his request for a COA. We

likewise deny his request for a COA and dismiss the appeal.

      Mr. Varela was the driver in a drive-by shooting that claimed the life of the

father of a rival gang member. He was convicted by a jury in New Mexico state

court of accessory to first-degree felony murder and conspiracy to commit

shooting at a dwelling. The New Mexico Supreme Court affirmed those

convictions, although it set aside some enhancements and his conviction on

another charge. See State v. Varela, 993 P.2d 1280 (N.M. 1999). On remand he

was sentenced to life imprisonment plus 11 years.

      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, an applicant must

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

“debatable or wrong.” Id.

      Mr. Varela’s first claim is that he was denied due process by the state

courts’ retroactive application of a new interpretation of the offense of “shooting

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at a dwelling.” Under New Mexico law a defendant is guilty of felony murder if

he commits “the killing of one human being . . . without lawful justification or

excuse . . . in the commission of or attempt to commit any felony.” N.M. Stat.

§ 30-2-1 (1978). The predicate felony for Mr. Varela’s felony-murder conviction

was “shooting at a dwelling.” That offense is defined as follows:

             Shooting at a dwelling or occupied building consists of
             willfully discharging a firearm at a dwelling or occupied
             building. Whoever commits shooting at a dwelling or
             occupied building that does not result in great bodily
             harm to another person is guilty of a fourth degree
             felony. Whoever commits shooting at a dwelling or
             occupied building that results in injury to another person
             is guilty of a third degree felony. Whoever commits
             shooting at a dwelling or occupied building that results
             in great bodily harm to another person is guilty of a
             second degree felony.

Id. § 30-3-8A. Mr. Varela argues that the New Mexico courts improperly applied

to him a new construction of the offense of “shooting at a dwelling . . . that

results in great bodily harm,” when they ruled in his case that death is great

bodily harm. This might be a relevant argument if he were challenging a

conviction for a shooting that caused great bodily harm. But the conviction he is

challenging is a conviction of felony murder, and any felony can be the predicate

offense. If, as he contends, due process required the state court to rule that death

is not great bodily harm, then Mr. Varela was guilty of a shooting that did not

cause great bodily harm, which is a fourth-degree felony. Accordingly, even if

the state court committed error, he was not prejudiced thereby. No reasonable

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jurist could debate that the district court erred in denying Mr. Varela’s due-

process claim.

      Mr. Varela’s second claim concerns the admission into evidence of a

written statement by a co-conspirator, Michael Gonzales, who testified at trial but

claimed not to remember making the written statement. Mr. Varela’s trial counsel

objected to the statement as hearsay, but did not argue that admitting the

statement violated Mr. Varela’s right to confrontation. The trial court admitted

the statement under an exception to the hearsay rule. On appeal the New Mexico

Supreme Court ruled that the written statement was inadmissible hearsay, but also

ruled that the error was harmless, because the statement was cumulative of

Gonzales’s testimony. See Varela, 993 P.2d at 1289–90.

      Mr. Varela now argues that admission of Gonzales’s statement violated his

right to confront his accuser. But the law is undisputably to the contrary. The

Supreme Court has recently reaffirmed that “when the declarant appears for

cross-examination at trial, the Confrontation Clause places no constraints at all on

the use of his prior testimonial statements.” Crawford v. Washington, 541 U.S.

36, 59 n.9 (2004). Because Gonzales testified, there was no confrontation-clause

violation.

      Mr. Varela’s ineffective-assistance-of-counsel claim therefore is also

baseless, because counsel is not ineffective for failing to raise a meritless issue.

See Sperry v. McKune, 445 F.3d 1268, 1275 (10th Cir. 2006).

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CONCLUSION

   We DENY Mr. Varela’s request for a COA and DISMISS the appeal.

                               ENTERED FOR THE COURT


                               Harris L Hartz
                               Circuit Judge




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