                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         FEB 14 2005
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 TOMMY TURNER,

          Petitioner-Appellant,
                                                          03-2193
 v.
                                                (D.C. No. 01-1137-JP/LCS)
                                                 (District of New Mexico)
 LAWRENCE TAFOYA, Warden,

          Respondent-Appellee.




                            ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
LUCERO, Circuit Judge



      Tommy Turner (“petitioner”), a person in state custody, filed an application

for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States

District Court for the District of New Mexico. The district court dismissed the

application with prejudice. The petitioner appeals. A chronology will help put




      *
        This order and judgment is not binding precedent, except under the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.
this controversy in focus. 1

      After a three-day jury trial, the petitioner was found guilty of first degree

murder by a jury on February 19, 1998, in a state district court in New Mexico,

and was later sentenced to life imprisonment, to be followed by five years of

parole. (The homicide occurred on January 3, 1995, and petitioner’s first trial, on

August 20, 1996, ended in a mistrial). Petitioner was represented at his trial by

appointed counsel. On direct appeal, petitioner’s conviction was affirmed by the

Supreme Court of New Mexico on January 3, 2000.

      On April 3, 2001, the petitioner, represented by retained counsel, filed a

petition for writ of habeas corpus in a state district court for the state of New

Mexico, naming the warden of the prison where he was incarcerated, Lawrence

Tafoya, as the respondent, and he alleged therein that he had been afforded

“ineffective and inadequate assistance of counsel” at trial. The petition was

prolix, consisting of some 38 pages, in which counsel urged numerous and sundry

instances where trial counsel’s performance was ineffective and inadequate for

Sixth Amendment purposes. On May 1, 2001, a response to that petition was


      1
        The district court denied petitioner’s request for a certificate of
appealability (COA) on May 24, 2004. However, pursuant to 28 U.S.C.§
2253(c)(1), this Court, on July 19, 2004, granted petitioner’s request that we issue
a COA, and by supplemental order, we certified the issues to be raised on appeal
as follows: 1) whether the petitioner received constitutionally ineffective
assistance of trial counsel, and 2) whether the district court erred in ruling on the
habeas corpus petition without an evidentiary hearing on the issue.

                                          2
filed by New Mexico. On May 22, 2001, a state district court judge, “having

reviewed the petition and the response from the respondent,” denied the petition.

On July 12, 2001, the Supreme Court of New Mexico denied petitioner’s petition

for a writ of certiorari.

       On October 1, 2001, the petitioner, appearing pro se, filed in the United

States District Court for the District of New Mexico an application for a writ of

habeas corpus pursuant to 28 U.S.C. § 2254. On December 14, 2001, Lawrence

Tafoya, the respondent, filed a motion to dismiss the petition with prejudice.

Later the petitioner, then being represented by the Federal Public Defender’s

office, filed a memorandum brief in support of petitioner’s pro se petition under

28 U.S.C. § 2254. On November 6, 2002, the respondent filed a memorandum

answer brief.

       On April 2, 2003, a United States Magistrate Judge filed an Amended

Proposed Findings and Recommended Disposition of petitioner’s petition, which

was also prolix consisting of some 17 pages, in which the magistrate judge

recommended that the respondent’s motion to dismiss be granted and that the

petitioner’s request for an evidentiary hearing be denied. Objections were

thereafter filed by the petitioner. On July 23, 2003, the district court entered an

order wherein it adopted the Magistrate Judge’s findings and recommendations,

denied petitioner’s objections and dismissed the petition with prejudice. Timely


                                          3
notice of appeal was thereafter filed.

      The present petition was filed in the United States District Court for the

District of New Mexico on October 1, 2001, which was after the effective date of

the Antiterrorism and Effective Death Penalty Act (“AEDPA”) amendments to 28

U.S.C. § 2254, which were enacted in 1996. Section 2254(d), as amended,

provides as follows:

      (d) An application for a writ of habeas corpus on behalf of a person
      in custody pursuant to the judgment of a state court shall not be
      granted with respect to any claim that was adjudicated on the merits
      in State court proceedings unless the adjudication of the claim –

                    (1) resulted in a decision that was contrary to, or
             involved an unreasonable application of, clearly
             established Federal law, as determined by the Supreme
             Court of the United States; or

                   (2) 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.

      As we understand it, both parties agree that the AEDPA amendments apply

to the instant case. The respondent’s position is that the requirements of the

AEDPA were not met, whereas petitioner’s position is that they were met.

Therein lies our problem.

      As already stated, the Magistrate Judge determined, in effect, if not in so

many words, that the petitioner’s “claims,” in his habeas corpus proceeding in the

New Mexico courts, had been “adjudicated on the merits,” and that the state


                                          4
court’s “adjudication” thereof did not result in a decision “that was contrary to, or

involved an unreasonable application of, clearly established federal law,” 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.” Also, as

already stated, the district court, with some minor changes, adopted the magistrate

judge’s findings and recommended disposition, denied petitioner’s objections

thereto, and dismissed the petition with prejudice.

      The first question to be answered is whether the claims raised in

petitioner’s federal habeas corpus petition were “adjudicated on the merits” in the

state courts of New Mexico, as required by 28 U.S.C. § 2254(d). In this regard,

the district court in the New Mexico habeas corpus proceeding denied the petition

without an evidentiary hearing after “having reviewed the petition and the

response thereto by the respondent.” On review of that order, the Supreme Court

of New Mexico simply denied petitioner’s petition for a writ of certiorari.

      28 U.S.C. § 2254(d), as amended, precludes a federal court from granting a

writ of habeas corpus “with respect to any claim that was adjudicated on the

merits in a State Court proceeding,” with the two important exceptions mentioned

therein. Before considering the two important exceptions mentioned in the

statute, as amended, we must first determine whether the petitioner’s claim of

ineffective assistance of trial counsel was “adjudicated on the merits” in the state


                                          5
courts of New Mexico. If it was not, then the federal district court could not

grant habeas corpus relief under 28 U.S.C. §2254. In this connection, as

indicated, the district court in New Mexico simply denied petitioner’s state court

habeas corpus proceeding and the New Mexico Supreme Court then simply denied

petitioner’s petition for writ of certiorari. Neither court gave any reason for its

action. Notwithstanding, under Aycox v. Lytle, 196 F.3d 1174 (10th Cir. 1999),

we conclude that in the instant case the New Mexico courts have “adjudicated on

the merits” petitioner’s claim of ineffective trial counsel. In Aycox, we clearly

indicated that a “summary decision” without even “cursory reasoning” can

constitute an “adjudication on the merits for the purposes of § 2254(d), provided

the decision was reached on substantive, rather than procedural, grounds.” There

is no suggestion that the orders of either the New Mexico district court or of the

New Mexico Supreme Court were based on procedural grounds. In Aycox, we

then went on to speak as follows:

      Thus, we must uphold the state court’s summary decision unless our
      independent review of the record and pertinent federal law persuades
      us that its result contravenes or unreasonably applies clearly
      established federal law, or is based on an unreasonable determination
      of the facts in light of the evidence presented. This “independent
      review” should be distinguished from a full de novo review of the
      petitioner’s claims (citation omitted). Our review is in fact
      deferential because we cannot grant relief unless the state court’s
      result is legally or factually unreasonable.

Aycox, 196 F.3d at 1178. See also Paine v. Massie, 339 F.3d 1194, 1198 (10th


                                           6
Cir. 2003).

      Having determined that petitioner’s claim of ineffective assistance of trial

counsel was “adjudicated on the merits” in the New Mexico courts, under 28

U.S.C. § 2254(d), as amended, we still cannot grant petitioner’s application for

habeas corpus in the federal court unless the state court adjudication either (1)

“results in a decision that was contrary to, or involved an unreasonable

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

Court of the United States”; or (2) “resulted in a decision that was based on an

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

Court proceeding.” Thus, in determining whether the state court’s decision in the

instant case violated petitioner’s Sixth Amendment right to counsel, we look to

federal law.

      In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held

that a defendant’s claim that his counsel’s assistance in his state trial was so

defective as to require a reversal of his conviction, must first show that counsel’s

performance was deficient, and secondly, that the deficient performance so

prejudiced the defendant as to deprive him of a fair trial. Id. at 687. The

Supreme Court than went on to state that the proper standard for judging an

attorney’s performance in the trial court is that of a reasonably effective

performance, considering all the circumstances. Id. In other words, the


                                           7
defendant must show that his counsel’s representation fell below an objective

standard of reasonableness. Id. at 688. In that same case, the Supreme Court

went on to state that “judicial scrutiny of counsel’s performance must be highly

deferential,” and added that “It is all too tempting for a defendant to second-guess

counsel’s assistance after conviction or adverse sentence, and it is all too easy for

a court, examining counsel’s defense after it has proved unsuccessful, to conclude

that a particular act or omission of counsel was unreasonable.” Id. at 689.

      As indicated, the federal magistrate judge, after reading the record before

him, held that trial counsel’s performance on behalf of the petitioner in the state

trial court was not constitutionally ineffective, and, alternatively, that in any

event, trial counsel’s performance did not, in the light of the evidence adduced at

trial, affect the outcome of the trial, and hence, there was no “prejudice.” It was

on this basis that the district court adopted the findings and conclusions reached

by the magistrate and dismissed the petition. In our study of the matter, the

record on appeal supports the district court’s disposition of the matter.

      The government’s evidence at trial was that on January 3, 1995, the

petitioner killed one Bonilla, a “homeless” person, by striking him with a billy

club and then strangling him with his hands, and later, with a wire, and that he

then took Bonilla’s money. The witness Williams testified that he saw the

petitioner strike and then strangle Bonilla. He also testified that thereafter, he


                                           8
and the petitioner put Bonilla’s body in his (Williams’) truck, drove a few miles

from the petitioner’s house and buried Bonilla in a shallow grave. Another

witness, one Shanks, testified that, a day or two following the homicide, the

defendant “confessed” to him that he had killed Bonilla in order to steal his

money. The petitioner testified on his own behalf and admitted that Williams and

Bonilla were at his home on the evening in question drinking beer and eating

pizza, but that the last he saw of Bonilla was when he (Bonilla) and Williams left

his home, both “alive and well,” so to speak. Acting on information given them

by Williams, the police recovered the burned remnants of Bonilla’s wallet, which

had been secreted in a fencepost on petitioner’s property, which, arguably,

undermines petitioner’s testimony, that when he last saw Bonilla and Williams

leave his home, Bonilla was “alive and well.”

      Thus, at trial, the question was essentially one of witness credibility, i.e.,

were Williams and Shanks testifying to the truth, or were they fabricating to save

themselves. We note, incidentally, that both Williams and Shanks were granted

“use immunity” by the state, and the jury was made aware of that fact during trial.

       Counsel’s argument in this court is that petitioner’s trial counsel did not

sufficiently investigate the background of both Williams and Shanks, which

would have disclosed additional reasons not to believe their trial testimony, and,

also, that at trial, petitioner’s counsel did not ask the “right questions” of


                                           9
Williams and Shanks, and other witnesses called by the state. Finally, counsel

asserts that petitioner’s trial counsel failed to make a timely request for the

identity of the “confidential informant” who alerted Officer Carter to the

homicide.

       In short, on the record before us, which includes audiotapes of all of the

testimony adduced at trial, our “independent review of the [state] record and

pertinent federal law,” after giving the state court’s resolution of this matter the

“deference” that it is entitled to, convinces us that the district court did not err in

denying petitioner the relief he seeks. See Aycox v. Lytle at 1178.

       On appeal, petitioner also argues that the district court erred by “evaluating

his claims in isolation and by denying him an evidentiary hearing,” and that we

should “remand the case for further consideration.” We are not persuaded. The

district court also found, alternatively, that even if petitioner did not receive

effective assistance of counsel, such deficiency did not cause “legal” prejudice,

i.e., the result would not have been different if his counsel had performed

“effectively” at trial.

       As to petitioner’s claim that the federal district court erred in not holding

an evidentiary hearing on petitioner’s claim of ineffective assistance of trial

counsel, see 28 U.S.C. § 2254(e)(2) and Le v. Mullen, 311 F.3d 1002, 1011 (10th

Cir. 2002).


                                           10
Judgment affirmed.



                          Submitted for the Court,



                          Robert H. McWilliams
                          Senior Circuit Judge




                     11
