                                                                           F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            JAN 21 2004
                             FOR THE TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                 Clerk

    JIMMY DON RIGGS,

                  Petitioner-Appellant,

    v.                                                    No. 03-2003
                                                (D.C. No. CIV-97-1001 BB/LCS)
    JOE WILLIAMS, Warden, Lea County                       (D. N.M.)
    Correctional Facility,

                  Respondent-Appellee.


                              ORDER AND JUDGMENT          *




Before O’BRIEN and BALDOCK , Circuit Judges, and              BRORBY , Senior Circuit
Judge.



         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      This order and judgment is not binding precedent, except under the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.
       Petitioner-appellant Jimmy Don Riggs appeals the district court’s order

dismissing his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

Pursuant to 28 U.S.C. § 2253(c), the district court granted petitioner a certificate

of appealability (COA) on the issue of whether the New Mexico Supreme Court

reached a decision in petitioner’s direct appeal that was contrary to federal law as

enunciated in California v. Trombetta , 467 U.S. 479 (1984). R., Doc. 66.

Although not expressly stated in the district court’s COA order, we believe the

district court also intended to grant petitioner a COA on the issues of: (1) whether

the New Mexico Supreme Court reached a decision that was contrary to       Arizona

v. Youngblood , 488 U.S. 51 (1988); and (2) whether petitioner has established a

due process violation under    Youngblood . Thus, we expand petitioner’s COA to

include these issues, and we note that petitioner is seeking relief in this appeal

only under Youngblood . See Aplt. Br.-In-Chief at 16-21.

       Having thoroughly reviewed this matter, we conclude that petitioner has

failed to establish a due process violation under   Youngblood . Accordingly, we

affirm the dismissal of petitioner’s habeas petition on that basis, and we do not

need to decide whether the New Mexico evidence preservation standards are

contrary to Youngblood .




                                            -2-
                                            I.

       Petitioner was convicted in a New Mexico state court of first degree

murder, and he received a life sentence. The background facts pertaining to

petitioner’s conviction are set forth in the opinion of the New Mexico Supreme

Court in petitioner’s direct appeal.   See State v. Riggs , 838 P.2d 975, 976-77

(N.M. 1992).

       At trial, the primary witness against petitioner was his roommate, Jimmy

Clark. Clark testified that he was in the house he shared with petitioner when

petitioner shot the victim, and he testified that he heard two gunshots and then

saw petitioner dragging the victim’s body across the kitchen floor.    Id. at 976.

Although Clark denied any involvement in the murder, he testified that he assisted

petitioner in disposing of the victim’s body and the gun used in the murder.

Id. at 977.

       In his direct appeal, petitioner claimed that he was denied a fair trial and

the right to effectively cross-examine Clark because the police failed to test or

preserve a pair of tennis shoes that they seized from Clark during their

investigation of the murder.    Id. Specifically, Officer Earl Nymeyer testified at

petitioner’s trial that over thirty days after the murder during a police interview




                                            -3-
with Clark he saw “brown spots” on the shoes. Trial Cassette Tape No. 19.        1
                                                                                     He

seized the shoes and sent them to the state crime lab for testing.      Id. According to

Officer Nymeyer, when the shoes were returned from the state crime lab, the lab

had “no results to report,” and the shoes were subsequently returned to Clark.        Id.

In addition, Kristin Radecki, a forensic serologist at the New Mexico state crime

lab, testified that she received a number of items collected by the police during

their investigation of the murder, and she tested each of the items for the presence

of blood. Trial Cassette Tape No. 21. According to Ms. Radecki, the items she

received for testing did not include Clark’s shoes.       Id.

       The New Mexico Supreme Court affirmed petitioner’s murder conviction

based on its prior decision in   State v. Chouinard , 634 P.2d 680 (N.M 1981).

Under Chouinard , a defendant’s conviction will not be reversed unless: “1) [t]he

State either breached some duty or intentionally deprived the defendant of

evidence; 2) [t]he improperly ‘suppressed’ evidence [was] material; and 3) [t]he

suppression of this evidence prejudiced the defendant.”         Riggs , 838 P.2d at 978

(citing Chouinard , 634 P.2d at 683). Applying this three-part test, the New

Mexico Supreme Court “[assumed] arguendo that the State either intentionally or

negligently deprived [petitioner] of the shoes,” but the court upheld petitioner’s



1
      All citations herein to trial cassette tapes are to tapes from petitioner’s
second trial in April 1991.

                                             -4-
conviction because it “[found] neither materiality of the shoes to the defense nor

resulting prejudice.”   Id.


                                           II.

       Petitioner claims that he is entitled to habeas relief under 28 U.S.C. § 2254

because: (1) the New Mexico Supreme Court reached a decision that was contrary

to Youngblood ; and (2) the State of New Mexico violated     Youngblood because

Clark’s shoes were potentially exculpatory, and the police acted in bad faith in

failing to test or preserve the shoes. The district court addressed the first issue

and determined that the New Mexico Supreme Court’s application of         Chouinard

was not contrary to Youngblood . R., Doc. 63 at 1. The district court also

concluded that petitioner had failed to establish a due process violation under

Youngblood because he had failed to show that the police acted in bad faith.     Id.

at 2. Because we agree with the latter conclusion, we do not reach the issue of

whether the New Mexico Supreme Court’s application of        Chouinard was contrary

to Youngblood .

       Under Youngblood , a defendant can establish a due process violation if he

can show that: (1) the government failed to preserve evidence that was

“potentially useful” to the defense; and (2) the government acted in bad faith in

failing to preserve the evidence.   Youngblood , 488 U.S. at 58. With respect to the

latter, threshold, requirement, the inquiry into bad faith “must necessarily turn on

                                           -5-
the police’s knowledge of the exculpatory value of the evidence.”         Id. at 57 n.*.

We have recognized that the “mere fact that the government controlled the

evidence and failed to preserve it is by itself insufficient to establish bad faith.”

United States v. Bohl , 25 F.3d 904, 910 (10th Cir. 1994) (quotation omitted).

This is true even if the government acted negligently,       id. at 912, or even

intentionally, so long as it did not act in bad faith.   2



       The issue of bad faith under      Youngblood is a mixed question of law and

fact in which the quintessential factual question of intent predominates, and we

normally review it for clear error.      Id. at 909. Because the district court did not

conduct an evidentiary hearing, however, “we conduct an independent review of

the district court’s decision.”     Cook v. McKune , 323 F.3d 825, 831 (10th Cir.



2
        Youngblood’s bad faith requirement “limits the extent of the police’s
obligation to preserve evidence to . . . that class of cases where the interests of
justice most clearly require it, i.e., those cases in which the police themselves by
their conduct indicate that the evidence could form a basis for exonerating the
defendant.” Youngblood , 488 U.S. at 58. This is a logical extension of the
Supreme Court’s decision in Trombetta because a defendant is not entitled to
relief under Trombetta unless he can show that the police “destroy[ed] evidence
whose exculpatory significance [was] ‘apparent before’ destruction.”      Bohl , 25
F.3d at 910 (quoting Trombetta , 467 U.S. at 489). Petitioner cannot make this
showing because “[t]he possibility that the [shoes] could have exculpated
[petitioner] if preserved or tested is not enough to satisfy the standard of
constitutional materiality in Trombetta. ” Youngblood , 488 U.S. at 57 n.*. In
other words, petitioner “has not shown that the police knew the [shoes] would
have exculpated him when they failed to perform certain tests or to [preserve] the
[shoes]; this evidence was simply an avenue of investigation that might have led
in any number of directions.”    Id.

                                               -6-
2003). Having conducted an independent review, we agree with the district court

that petitioner has failed to establish that the police acted in bad faith.       See United

States v. Donaldson , 915 F.2d 612, 614 (10th Cir. 1990) (noting that “it is the

defendant who bears the burden of showing bad faith under             Youngblood ”).

       The evidence introduced at petitioner’s trial established that the police

suspected that the brown spots on Clark’s shoes were blood. The evidence also

established that the police returned the shoes to Clark after the state crime lab

either failed to test the shoes or never received the shoes for testing. This

evidence is insufficient to establish a due process violation under           Youngblood .

To begin with, petitioner has offered no legal authority to support his claim that

the police had a duty to test the shoes, and      Youngblood supports the opposite

conclusion. See Youngblood , 488 U.S. at 59 (rejecting argument that “the

Due Process Clause is violated when the police fail to use a particular

investigatory tool,” and noting that “the police do not have a constitutional duty

to perform any particular tests”). Further, while the police may have failed to

preserve the shoes, there is no evidence in the record to support petitioner’s claim

that the shoes were returned to Clark as part of a bad faith attempt by the police

to destroy their potential exculpatory value.         Consequently, petitioner has failed to

establish a violation of   Youngblood .




                                                -7-
The judgment of the district court is AFFIRMED.


                                          Entered for the Court


                                          Terrence L. O’Brien
                                          Circuit Judge




                                -8-
