                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 12 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    JOE BURR,

                Petitioner-Appellant,

    v.                                                   No. 00-2365
                                                  (D.C. No. CIV-98-329-BB)
    CAMILO ROMERO, Warden,                                (D. N.M.)
    Roswell Correctional Center;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and KELLY , 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.




*
      This order and judgment is not binding precedent, except under the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 Joe Burr appeals the decision of the district court denying his

petition for habeas corpus relief filed pursuant to 28 U.S.C. § 2254. The district

court did not act on petitioner’s application for a certificate of appealability

(COA), so that application is deemed denied.     See General Order of October 1,

1996. Petitioner’s notice of appeal is treated as a renewed application for COA,

Fed. R. App. P. 22(b)(2), and is denied.

      Petitioner was convicted in a state court jury trial of burglary of a vehicle,

conspiracy to commit burglary, possession of burglary tools, and larceny under

$250. In addition to the sentences stemming from the burglary, petitioner was

also sentenced to three years’ incarceration as a habitual offender. Petitioner’s

conviction was upheld on direct appeal, where the New Mexico Court of Appeals

rejected a challenge to the sufficiency of the evidence. The petition for writ of

certiorari to the New Mexico Supreme Court was denied.

      In a state post-conviction proceeding, petitioner again raised the sufficiency

of the evidence claim and further argued that he had received ineffective

assistance of counsel. Petitioner’s state habeas corpus petition was also denied.

      Petitioner then sought habeas relief for these exhausted state claims in the

federal district court. Petitioner’s case was referred to a magistrate judge who

concluded that the evidence clearly supported petitioner’s conviction and that

petitioner had failed to demonstrate that he had been prejudiced by the


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performance of his counsel. After de novo review, the district court adopted the

report and recommendation of the magistrate judge and denied the petition. This

appeal followed.

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), petitioner will not be entitled to habeas relief unless the state court’s

adjudication of the merits of his claims “resulted in a decision that was contrary

to, or involved an unreasonable application of, clearly established” Supreme

Court precedent or “resulted in a decision that was 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).

      Under the “contrary to” clause, a federal habeas court may grant the
      writ if the state court arrives at a conclusion opposite to that reached
      by [the Supreme] Court on a question of law or if the state court
      decides a case differently than [the Supreme] Court has on a set of
      materially indistinguishable facts. Under the “unreasonable
      application” clause, a federal habeas court may grant the writ if the
      state court identifies the correct governing legal principle from [the
      Supreme] Court’s decisions but unreasonably applies that principle to
      the facts of the prisoner’s case.

Williams v. Taylor , 120 S. Ct. 1495, 1523 (2000).

      Petitioner challenges the sufficiency of the evidence relied upon to convict

him, characterizing the chief prosecution witness’s testimony as self-serving,

lacking in credibility, inconsistent, and inaccurate. As noted above, the New

Mexico Court of Appeals rejected this claim on direct appeal.


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       We have listened to the tape recordings of petitioner’s trial and do not find

the holding of the New Mexico court to be “an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.”   See

28 U.S.C. § 2254(d)(2). The prosecution’s chief witness was present at the time

of the burglary. He testified that, upon spotting some county road equipment

parked for the night along a rural road, petitioner asked the third member of the

group whether he needed a battery for his car. The witness testified that he later

saw petitioner carry a large battery from a county road roller to the trunk of the

car the three were driving. The witness also tied petitioner to other items of

stolen property.

       With regard to the claim of ineffective assistance of counsel, petitioner

argues mainly that counsel was deficient for failing to adequately investigate the

background of the prosecution’s main witness. Facts about the witness’s

alcoholism, however, and the fact that he had been drinking the night of the

burglary were clearly brought before the jury. Petitioner quotes selectively from

the defense’s opening statement when he complains that counsel bolstered the

main witness by telling the jury that the witness would be very believable.

Counsel went on, however, to urge the jury not to believe the witness, because the

inconsistencies in his story “would not check out.”




                                             -4-
       Petitioner identifies other aspects of his counsel’s performance which he

argues combined to deprive him of a meaningful defense. We agree with the

district court, however, that petitioner has failed to show “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”      Strickland v. Washington , 466 U.S. 668,

694 (1984).

       The statute governing the issuance of a COA “establishes procedural rules

and requires a threshold inquiry into whether the circuit court may entertain an

appeal.” Slack v. McDaniel , 529 U.S. 473, 482 (2000). No COA will be

forthcoming unless “‘the applicant has made a substantial showing of the denial

of a constitutional right.’”   Id. at 481 (quoting 28 U.S.C. § 2253(c)(2)). Because

the district court rejected petitioner’s claims on the merits, petitioner must now

“demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.”    Id. at 484. Petitioner has failed to

make the required showing for a COA. We therefore deny petitioner’s application

for COA. This appeal is DISMISSED.

                                                      Entered for the Court



                                                      Stephen H. Anderson
                                                      Circuit Judge



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