                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          JUN 28 1999

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 DAVID COELHO,

          Plaintiff-Appellant,

 v.
                                                      No. 98-2282
                                              (D.C. No. CIV-98-72 LH/LFG)
 CAMILIO ROMERO, Warden,
                                                     (New Mexico)
 Roswell Correctional Center;
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Defendants-Appellees.




                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK 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)(2); 10th Cir. R. 34.1(G). The cause 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       This order and judgment is not binding precedent, except under the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, or 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.
      David Coelho, a pro se prisoner, appeals from the district court order

dismissing his petition for relief under 28 U.S.C. § 2254. We deny his motion for

a certificate of appealability and dismiss the appeal.

      Mr. Coelho was convicted of aggravated battery of his wife. The New

Mexico Court of Appeals affirmed his conviction and the New Mexico Supreme

Court denied his petition for certiorari on October 23, 1996. On January 20,

1998, Mr. Coelho filed a petition for a writ of habeas corpus in federal district

court. The state moved to dismiss for untimely filing under AEDPA, 28 U.S.C. §

2244(d). The magistrate judge determined that the filing was timely but

recommended that the petition be dismissed. In addition to filing objections with

the district court, Mr. Coelho filed a notice of appeal with this court. The district

court adopted the magistrate judge’s recommendation and dismissed the petition.

Although Mr. Coelho did not file a new notice of appeal, he filed a brief in this

court raising two issues.

      We lack jurisdiction to hear an appeal taken directly from the magistrate

judge’s decision. See Colorado Building & Constr. Trades Council v. B.B.

Andersen Constr. Co., 879 F.2d 809, 811 (10th Cir. 1989). However, we may

construe as a notice of appeal a document intended to serve as an appellate brief

and filed within the time allotted to file a notice of appeal. See Smith v. Barry,

502 U.S. 244, 248-49 (1992). Mr. Coelho’s brief meets the requirements of


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Smith, thus conferring jurisdiction on this court.

      Under AEDPA the one-year statute of limitations to file a federal habeas

petition begins to run on either “the date on which the judgment became final by

the conclusion of direct review or the expiration of the time for seeking such

review.” 28 U.S.C. § 2244(d)(1)(A). In this case where no petition for a writ of

certiorari was filed with the Supreme Court, Mr. Coelho’s claim became final on

January 21, 1997, when the time expired for filing a petition for certiorari 90 days

after the October 23, 1996 entry of judgment. See Griffith v. Kentucky, 479 U.S.

314, 321 n.6 (1987) (defining “final”); James v. Scott, No. 99-7005, slip op. at 2

(10th Cir. May 20, 1999) (unpublished). Mr. Coelho filed this action on January

20, 1998, and his petition was therefore timely.

      Turning to the merits of the appeal, Mr. Coelho claims ineffective

assistance of counsel for, among other things, the failure to call his wife, the

battered victim, to testify on his behalf, notwithstanding she had already testified

for the prosecution. Although this new ground for ineffective assistance was not

raised in state court, under AEDPA a court may nevertheless exercise discretion

to review and deny the claim. See 28 U.S.C. § 2254(b)(2); Hoxsie v. Kerby, 108

F.3d 1239, 1242-43 (10th Cir. 1997). For ineffective assistance of counsel,

defendant must establish that his counsel's performance objectively fell below the

standard of reasonableness and that the deficient performance was prejudicial.


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See Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Petitioner must

overcome the strong presumption that his attorney's decision "might be considered

sound trial strategy.” Id. at 689 Here, counsel’s decision to refrain from calling

the battered victim as a defense witness clearly resembles trial strategy and Mr.

Coelho has not overcome his burden to establish otherwise. Moreover, he offers

no evidence of prejudice. With respect to Mr. Coelho’s other claim that he did

not receive effective assistance of counsel because the fourteen-month delay

resulted in the unavailability of three witnesses, we agree with the magistrate

judge’s analysis that the claim lacks merit.

      Mr. Coelho also contends that a fourteen-month delay in bringing him to

trial violated his right to a speedy trial. In reviewing the New Mexico Court of

Appeal’s determination to the contrary, we must evaluate whether that court’s

determination was "contrary to, or . . . an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

or . . . based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). Although

the interpretation of section 2254(d) is now before the Supreme Court, see

Williams v. Taylor, 163 F.3d 860 (4th Cir.1998), cert. granted, No. 98-8384 (U.S.

April 5, 1999), Mr. Coelho loses under any plausible reading of section 2254(d).

In evaluating the speedy trial claim, the New Mexico Court of Appeals balanced


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the factors outlined in Barker v. Wingo, 407 U.S. 514 (1972): length of delay,

reasons for the delay, defendant’s assertion of the right, and prejudice to

defendant. The state court concluded that the part of the delay primarily caused

by the state was not enough to violate the right to a speedy trial when weighed on

balance against the remaining Barker factors. We agree. Four months of the

delay was entirely attributable to Mr. Coelho who failed to appear for his first

trial and had to be reapprehended. Of the remaining ten months, much of it was

the normal time needed to get to trial. Mr. Coelho did not assert his right to a

speedy trial until the eve of trial, and he himself acknowledged that any prejudice

was insignificant. On this record, the delay does not violate Mr. Coelho’s right to

a speedy trial.

      A habeas petitioner is entitled to a certificate of appealability only if the

petitioner has made a "substantial showing of the denial of a constitutional right."

28 U.S.C. § 2253(c)(2). Because the issues raised by Mr. Coelho do not amount

to the requisite showing, we deny the certificate.

      In conclusion, we DENY the certificate of appealability and DISMISS the

appeal.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Chief Judge


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