                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAR 6 2001
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


SUSANO CARDENAS, JR.,

          Plaintiff-Appellant,

v.                                                     No. 00-2389
                                                (District of New Mexico)
RONALD LYTLE, Warden;                       (D.C. No. CIV-97-1011 BB/WWD)
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before HENRY, BRISCOE, and MURPHY, 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       This order and judgment is not binding precedent, except under the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, Susano Cardenas, Jr. was convicted of aggravated battery with a

firearm enhancement and, in a separate proceeding, of three counts of third

degree criminal sexual contact. On July 31, 1997, Cardenas filed a motion

pursuant to 28 U.S.C. § 2254 challenging his conviction on the aggravated

battery charge on the basis that he was denied his Sixth Amendment right to

confront a witness. Additionally, Cardenas challenged the sexual contact

conviction, claiming his trial counsel was constitutionally ineffective for failing

to call corroborating witnesses at his trial.

      The district court denied relief on the Confrontation Clause claim but

granted Cardenas a certificate of appealability (“COA”) on that issue.        See 28

U.S.C. § 2253(c)(1)(A) (providing that an appeal may not be taken from the

denial of a § 2254 habeas petition unless the petitioner first obtains a COA). The

court also denied relief on the ineffective assistance claim and declined to grant

Cardenas a COA. Cardenas is before this court seeking review of the district

court’s resolution of the Confrontation Clause claim and seeking a COA so he

can appeal the denial of the ineffective assistance claim. We     affirm the

judgment of the district court as to Cardenas’ Confrontation Clause claim. We

deny Cardenas a COA as to his ineffective assistance claim and           dismiss the

appeal in part.




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       Cardenas’ Confrontation Clause claim arises from the failure of the

prosecution to produce the victim, Hipolito Pena, at Cardenas’ trial. After

concluding that Pena was unavailable, the trial court, over Cardenas’ objection,

permitted the prosecution to present taped testimony given by Pena during a

preliminary hearing. Cardenas’ claim is limited to his assertion that Pena was not

“unavailable” because the prosecution did not exercise good faith and due

diligence in attempting to secure his appearance at Cardenas’ trial.    See Ohio v.

Roberts , 448 U.S. 56, 64 (1980) (“In the usual case . . . the prosecution must

either produce, or demonstrate the unavailability of, the declarant whose

statement it wishes to use against the defendant.”);    Barber v. Page , 390 U.S. 719,

724-25 (1968) ("[A] witness is not ‘unavailable’ for purposes of the . . .

exception to the confrontation requirement unless the prosecutorial authorities

have made a good-faith effort to obtain his presence at trial.”).

       Cardenas filed his § 2254 petition after the April 24, 1996 effective date

of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The AEDPA,

therefore, governs this court’s review of his Confrontation Clause claim.

Because Cardenas’ claim has already been adjudicated on the merits by the New

Mexico state court, this court cannot grant the writ of habeas corpus unless the

state court’s decision “was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the


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United States,” 28 U.S.C. § 2254(d)(1), or “was based on an unreasonable

determination of the facts in light of the evidence presented at trial.”    Id. §

2254(d)(2); see also Williams v. Taylor , 529 U.S. 362, 402-13 (2000).

       The district court methodically set out the facts surrounding the assault on

Pena, the prosecution’s efforts to secure Pena’s appearance at Cardenas’ trial,

and the bases on which the state court denied Cardenas’ claim. The court then

applied the AEDPA standard and concluded that Cardenas was not entitled to

relief on his Confrontation Clause claim. We have thoroughly reviewed the

record, including Cardenas’ appellate brief, and agree that the state court’s

adjudication of his Confrontation Clause claim was not “contrary to, or involved

an unreasonable application of, clearly established Federal law,” or “based on an

unreasonable determination of the facts in light of the evidence presented at

trial.” 28 U.S.C. § 2254(d)(1), (2).

       Before Cardenas is entitled to a COA on his ineffective assistance claim,

he must make a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). Cardenas may make this showing by demonstrating that the

issues raised are debatable among jurists, a court could resolve the issues

differently, or that the questions presented deserve further proceedings.         See

Slack v. McDaniel , 529 U.S. 473, 483-84 (2000).         After consideration of

Cardenas’ request for a COA, and a       de novo review of the magistrate judge’s


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recommended disposition, the district court’s order, and the entire record on

appeal, this court concludes that Cardenas has not made a “substantial showing of

the denial of a constitutional right,” and is thus not entitled to COA on his

ineffective assistance claim.

      For substantially those reasons set forth in the magistrate judge’s

recommended disposition and the district court’s order dated August 22, 2000,

this court affirms the district court’s denial of relief on Cardenas’ Confrontation

Clause claim. This court   denies Cardenas’ request for a COA on his ineffective

assistance claim and   dismisses the appeal in part.

                                        ENTERED FOR THE COURT:



                                        Michael R. Murphy
                                        Circuit Judge




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