 1      IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2 STATE OF NEW MEXICO,

 3       Plaintiff-Appellee,

 4 v.                                                  NO. 28,137

 5 JUAN A. SAENZ,

 6       Defendant-Appellant

 7 APPEAL FROM THE DISTRICT COURT OF HIDALGO COUNTY
 8 J. C. Robinson, District Judge

 9 Gary K. King, Attorney General
10 Santa Fe, NM

11 for Appellee

12 Hugh W. Dangler, Chief Public Defender
13 Navin H. Jayaram, Assistant Appellate Defender
14 Santa Fe, NM

15 for Appellant

16                             MEMORANDUM OPINION

17 FRY, Judge.

18       Defendant is appealing from a district court judgment and sentence entered after

19 a jury found Defendant guilty of possession of methamphetamine and possession of

20 drug paraphernalia. We issued a second calendar notice proposing to affirm.
 1 Defendant has responded with a memorandum in opposition to our calendar notice.

 2 We affirm.

 3 MOTION TO AMEND

 4        In our second calendar notice, we denied Defendant’s motion to amend with

 5 respect to his double jeopardy issue. In his memorandum in opposition to our second

 6 calendar notice, Defendant claims that the motion “remains viable” because he now

 7 presents, for the first time, new arguments for setting aside his conviction for

 8 possession of drug paraphernalia. [Second MIO 1] To the extent that Defendant’s

 9 arguments may be construed as a motion to reconsider our ruling, we note that our

10 rules do not provide for this. As we understand Defendant’s arguments, however,

11 they relate to separate issues concerning notice and an amendment of the indictment.

12 As such, Defendant is making an untimely attempt to amend his docketing statement.

13 See State v. Moore, 109 N.M. 119, 129, 782 P.2d 91, 101 (Ct. App. 1989) (holding

14 that a motion to amend must be made in the first memorandum in opposition),

15 overruled on other grounds by State v. Salgado, 112 N.M. 537, 538, 817 P.2d 730,

16 731 (Ct. App. 1991). Accordingly, we do not address Defendant’s arguments.




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 1 INEFFECTIVE ASSISTANCE OF COUNSEL

 2        Defendant continues to maintain that he received ineffective assistance of

 3 counsel. [Second MIO 4] This Court will not decide an ineffective assistance of

 4 counsel claim on direct appeal unless a defendant makes a prima facie showing that

 5 counsel was incompetent and the incompetence resulted in prejudice to the defense.

 6 See State v. Richardson, 114 N.M. 725, 727, 845 P.2d 819, 821 (Ct. App. 1992).

 7 Defendant is challenging trial counsel’s failure to file a motion to suppress the

 8 evidence. [Second MIO 4-5] Defendant does not provide any new arguments, but

 9 refers us back to his first memorandum and the motion to amend. [Second MIO 5]

10 There, Defendant specifically argued that, while the initial stop of his vehicle was

11 valid because his passenger had an outstanding warrant, the officer improperly

12 expanded the scope of the seizure. [First MIO 9-10] See State v. Duran,

13 2005-NMSC-034, ¶ 35, 138 N.M. 414, 120 P.3d 836 (noting that a continued

14 detention, while lawful at the outset, may become unlawful if the officer unjustifiably

15 expands the scope of the detention). Defendant argued that the search was proper for

16 purposes of investigating the source of the odor of alcohol emanating from the

17 vehicle, but should have ended when Defendant’s breath test indicated no presence

18 of alcohol. [First MIO 10] However, as we observed in our second calendar notice,


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 1 Defendant’s factual description referred us to the arresting officer’s statement of

 2 probable cause. [First MIO 3] This statement indicates that Defendant consented to

 3 the search. [RP 19] We can presume that the officer would have testified consistent

 4 with the probable cause statement. We also note that district court could have

 5 accepted this testimony over Defendant’s own claim [First MIO 3] that he never

 6 consented at any time. See State v. Sutphin, 107 N.M. 126, 131, 753 P.2d 1314, 1319

 7 (1988) (observing that the fact finder is free to reject a defendant’s version of events).

 8 In his second memorandum in opposition, Defendant does not provide any new facts

 9 or argument that persuades us that this analysis was incorrect. See State v. Ibarra, 116

10 N.M. 486, 489, 864 P.2d 302, 305 (Ct. App. 1993) (“A party opposing summary

11 disposition is required to come forward and specifically point out errors in fact and/or

12 law.”). As such, this claim is better addressed in a habeas proceeding. See Duncan

13 v. Kerby, 115 N.M. 344, 346, 851 P.2d 466, 468 (1993).

14 SUFFICIENCY OF THE EVIDENCE

15        Defendant has not provided any additional argument with respect to this issue.

16 Accordingly, we rely on our analysis as set forth in the second calendar notice. See

17 State v. Johnson, 107 N.M. 356, 358, 758 P.2d 306, 308 (Ct. App. 1988) (holding that




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1 an issue is deemed abandoned where a party fails to respond to the proposed

2 disposition of the issue.)

3        For the reasons set forth in this opinion, we affirm.

4        IT IS SO ORDERED.



5
6                                         CYNTHIA A. FRY, Judge

7 WE CONCUR:



8
9 JAMES J. WECHSLER, Judge



10
11 LINDA M. VANZI, Judge




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