                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                                JUN 25 2002
                                     TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 JOSEPH RASCON,

          Petitioner - Appellant,
 v.                                                           No. 02-2028
 TIM LEMASTER, Warden, New Mexico                  (D.C. No. CIV-01-845-JP/KBM)
 State Penitentiary; ATTORNEY                             (D. New Mexico)
 GENERAL FOR THE STATE OF NEW
 MEXICO,

          Respondents - Appellees.




                                ORDER AND JUDGMENT*


Before SEYMOUR, HENRY, and BRISCOE, 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.

      Petitioner Joseph Rascon, a state prisoner appearing pro se, seeks a certificate of


      *
        This order and judgment is not binding precedent, except under the doctrines of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.
appealability to appeal the district court's denial of his 28 U.S.C. § 2254 habeas petition.

We deny a certificate of appealability and dismiss the appeal.

       Rascon was convicted by a jury in state court of numerous counts relating to sexual

abuse of his girlfriend's eldest daughter. He was sentenced to a total of 174 years of

imprisonment. His conviction was affirmed on direct appeal by the New Mexico Court of

Appeals, and the New Mexico Supreme Court denied certiorari on April 6, 2000. His

request for state post-conviction relief was denied and the New Mexico Supreme Court

denied certiorari on May 15, 2001.

       Rascon filed his § 2254 habeas petition on July 23, 2001, raising six claims: (1)

violation of his Sixth Amendment right to counsel and his Fifth Amendment right against

self-incrimination; (2) denial of a speedy trial; (3) violation of due process rights because

he was not present at hearing on defense motion to compel production of medical records;

(4) involvement of trial judge in plea negotiations; (5) admission of video deposition at

trial; and (6) ineffective assistance of counsel. The district court adopted the magistrate

court's findings and recommended disposition and dismissed the petition.

       On appeal, Rascon contends that his right to be present at all critical stages of the

trial was violated because he was not present at a hearing on whether he was entitled to

review the psychiatric records of the victim, and his counsel was ineffective for failing to

gain access to the records.

       Prior to trial, Rascon's counsel requested access to the psychiatric records of the


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victim and the victim's sister. The records were subject to a confidentiality order. After

examining the records in camera to see if there was any exculpatory material that would

require disclosure of the records, the trial court refused disclosure.

       A defendant has a due process right to be present at trial “'whenever his presence

has a relation, reasonably substantial, to the fullness of his opportunity to defend against

the charge.'” Larson v. Tansy, 911 F.2d 392, 394 (10th Cir. 1990) (quoting Snyder v.

Massachusetts, 291 U.S. 97, 105-06 (1934)). However, due process does not require the

defendant to be present “when [his] presence would be useless, or the benefit but a

shadow.” Id. We conclude that Rascon has failed to show how his presence at the

motion hearing could have aided his defense or how his absence prejudiced him. See

Hale v. Gibson, 227 F.3d 1298, 1312 (10th Cir. 2000).

       Rascon also argues his counsel was ineffective because she failed to gain access to

the records after the prosecution arguably waived confidentiality. In order to be entitled

to relief, a petitioner must establish not only that his or her counsel was ineffective, but

that, absent counsel's errors, there is a “reasonable probability” that the outcome of the

trial would have been different. Moore v. Gibson, 195 F.3d 1152, 1178 (10th Cir. 1999).

Both the trial court and the New Mexico Court of Appeals determined there was nothing

exculpatory in the psychiatric records that required disclosure and Rascon's arguments do

not persuade us otherwise. Rascon has failed to show a reasonable probability that the

outcome of his trial would have been different if he had gained access to the records.


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      As Rascon has failed to make “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(1)(B), we DENY a certificate of appealability

and DISMISS the appeal. The mandate shall issue forthwith.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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