                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                January 26, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 GARY NEEF,

       Petitioner - Appellant,
                                                       No. 09-2200
 v.                                         (D.C. No. 07-CV-00303-MCA-DJS)
                                                         (D.N.M.)
 MICHAEL HEREDIA, Warden,

       Respondent - Appellee.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Petitioner-Appellant Gary Neef seeks to appeal from the district court’s

order and judgment adopting the magistrate judge’s proposed findings and

recommended disposition and denying his habeas corpus petition pursuant to 28

U.S.C. § 2254. Because Mr. Neef has not made “a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his request for a

certificate of appealability (“COA”) and dismiss the appeal. See Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000).



                                    Background

      In March 1997, days after his eighteenth birthday, Mr. Neef and three
others agreed to rob an Albertsons grocery store in Albuquerque, New Mexico.

Mr. Neef and a codefendant hid in a cooler until the store closed. Shortly

thereafter, Mr. Neef proceeded to the customer service and safe area and shot a

store employee. He then removed approximately $930 in currency from an open

safe. Mr. Neef later dismantled the shotgun he used and disposed of it in various

locations; the murder weapon has never been found. 1 R. 337-338, 384, 524-25,

688. The defendants divided the currency, and Mr. Neef burned the straps from

the currency. 1 R. 525. While being held on the resulting charges, Mr. Neef was

found with a “shank.” 1 R. 364.

      Mr. Neef pled guilty to first degree murder (willful and deliberate),

conspiracy to commit armed robbery, armed robbery (with firearm enhancement),

two counts of tampering with evidence, and one count of possession of a deadly

weapon by a prisoner. 1 R. 48-49, as modified by 53. After partially successful

state post-conviction relief, his sentence is life plus eleven years, plus five years

on parole. 1 R. 54, 366. In his federal habeas petition, Mr. Neef raised (1)

ineffective assistance of counsel based upon his counsel’s decision to forego a

motion to suppress in favor of a plea agreement that eliminated the possibility of

the death penalty, 1 R. 8, 16, and (2) failure to suppress evidence based upon an

unlawful seizure and detention, 1 R. 9. The state concedes exhaustion. 28 U.S.C.

§ 2254(b)(1)(A); 1 R. 43, ¶ 5. On appeal, Mr. Neef argues that his counsel never

tried a death penalty case and should have pursued the motion to suppress, and

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then gone to trial, or at least obtained a better deal. Aplt. Br. 3A(2)-(3). Mr.

Neef contends that he pled and received maximum sentences, except for the death

penalty, which Bernalillo County jurors are reluctant to impose. Aplt. Br. 3A(3).

He also argues the merits. According to Mr. Neef, when the police stopped the

vehicle he and his associates were riding in, the police lacked probable cause, an

arrest warrant or exigent circumstances; accordingly, all evidence obtained

thereafter is derivative evidence which should have been suppressed. Aplt. Br.

3B(1)-(2). In addition to Fourth Amendment violations, Mr. Neef contends that

his confession is the product of Fifth Amendment violations—he had ingested

marijuana and LSD, was sleep-deprived, and was not allowed to make a phone

call or summon counsel. Aplt. Br. 3(B)(3).



                                     Discussion

      To warrant a COA, Mr. Neef must demonstrate that the federal district

court’s decision is reasonably debatable or that the issues presented were

adequate for further encouragement. Miller-El v. Cockrell, 537 U.S. 322, 336

(2003). When a state court resolves a federal claim on the merits, our review of

the result is deferential and state court findings are presumed correct. 28 U.S.C.

§ 2254(d) & (e)(1); Williams v. Taylor, 529 U.S. 362, 405-07, 410-11 (2000).

Ineffective assistance of counsel requires a showing of deficient performance and

prejudice. Strickland v. Washington, 466 U.S. 668, 687 (1984). In the guilty

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plea context, a defendant must demonstrate that but for counsel’s erroneous

advice, he would not have pled guilty but rather would have gone to trial. Hill v.

Lockhart, 474 U.S. 52, 56-59 (1985).

      After an evidentiary hearing, the state district court determined that Mr.

Neef’s counsel performed competently during the pendency of the case, including

negotiating a plea agreement and pursuing successful arguments that would

ultimately reduce Mr. Neef’s sentence. 1 R. 363-64, 370-73. As a result, it was

unnecessary to address the prejudice element. 1 R. 364; Strickland, 466 U.S. at

697. The court determined that counsel was fully prepared to litigate a motion to

suppress, but made a tactical decision that avoiding the death penalty was

paramount, particularly given the “numerous independent witnesses and

devastating evidence available” that supported first-degree murder and imposition

of the death penalty. 1 R. 363; see Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003)

(counsel is presumed to make decisions for tactical reasons and not due to

neglect). The event was captured on videotape (with Mr. Neef and a codefendant

in ski masks), Mr. Neef made incriminating remarks to others, and he was armed

with a shank while awaiting disposition of the charges. 1 R. 23, 363-64. The

trial court determined that counsel consulted with other death penalty and

appellate practitioners, filed at least thirty-eight motions on Mr. Neef’s behalf,

vigorously argued several motions, and provided competent representation. 1 R.

363. Having determined that Mr. Neef’s ineffective assistance of counsel claim

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failed, the state district court declined to address the merits of the motion to

suppress and denied relief on that ground. 1 R. 364. The New Mexico Supreme

Court denied certiorari. 1 R. 635.

      When Mr. Neef pled guilty, he admitted the elements of the offenses and

waived all non-jurisdictional defects. See United States v. Broce, 488 U.S. 563,

570, 574-75 (1989). Mr. Neef cannot independently pursue his motion to

suppress because a “guilty plea represents a break in the chain of events which

has preceded it in the criminal process.” Tollett v. Henderson, 411 U.S. 258, 267

(1973); United States v. Wise, 179 F.3d 184, 186 (1999). As a result, most

pretrial issues are waived, at least in the criminal proceeding. Broce, 488 U.S. at

569; Haring v. Prosise, 462 U.S. 306, 319-21 (1983). The only remaining claim

is that the plea was not voluntary and intelligent, here, an assertion that counsel

provided ineffective assistance of counsel which led to the plea. Tollett, 411 U.S.

at 266-67. The district court’s ultimate resolution of the ineffective assistance of

counsel claim, which accorded proper deference to the state court resolution, is

not reasonably debatable. The state court correctly identified the principles of

Strickland, and its application was objectively reasonable. See Bell v. Cone, 535

U.S. 685, 698-699 (2002). Counsel obviously weighed the risks and potential

benefits of continuing with the motion to suppress versus eliminating the

possibility of the death penalty, and we cannot say that the decision made was

objectively unreasonable.

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We DENY a COA and DISMISS the appeal.

                          Entered for the Court


                          Paul J. Kelly, Jr.
                          Circuit Judge




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