                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUN 26 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk


    PETER RAY ARAGON, also known
    as Peter Laycock Aragon,

                Petitioner-Appellant,                    No. 01-2320
                                               (D.C. No. CIV-99-1004 JP/WWD)
    v.                                                    (D. N.M.)

    LAWRENCE TAFOYA, Warden;
    PATRICIA A. MADRID, Attorney
    General,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , PORFILIO , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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 Peter Ray Aragon appeals from an order of the district court

denying his petition for writ of habeas corpus filed pursuant to 28    U.S.C. § 2254.

We granted Mr. Aragon a certificate of appealability on the two issues he raised

in his brief on appeal. We now affirm.

       In 1997, Mr. Aragon was convicted by a jury of attempted escape from jail,

in violation of N.M. Stat. Ann. § 30-22-8. He was sentenced to        eighteen months

on the escape charge with eight years added based on his habitual offender status.

The New Mexico Court of Appeals affirmed his conviction and the New Mexico

Supreme Court denied his petition for certiorari.

       Mr. Aragon ultimately raised two issues in his petition seeking federal

habeas relief, ineffective assistance of counsel at trial and denial of a fair trial

due to prosecutorial misconduct. The district court denied the petition.

       We are governed in this appeal by the provisions of AEDPA, 28 U.S.C.

§ 2254(d). Because the New Mexico state courts addressed Mr. Aragon’s claims

on the merits, he

       will be entitled to federal habeas relief only if he can establish that
       the state court decision was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the
       Supreme Court of the United States or was based on an unreasonable
       determination of the facts in light of the evidence presented in the
       State court proceeding.




                                            -2-
Toles v. Gibson , 269 F.3d 1167, 1172 (10th Cir. 2001) (quotations omitted). In

making this determination, we presume the state courts’ determinations of

historical fact are correct. 28 U.S.C. § 2254(e)(1).

      Mr. Aragon asserts trial counsel was         ineffective because counsel refused to

call a witness, Frank Martinez, who would testify that he was responsible for

cutting the jail cell bar several months before Mr. Aragon was placed in the cell.

At the end of the state’s presentation, both the court and defense counsel assessed

the state’s case as weak. Counsel made the tactical decision that no defense was

necessary to obtain an acquittal because the state had presented no evidence

showing the cuts found on the cell bar were recent, no shavings were found, and

the jail had no policies in place to routinely inspect cell bars. Contrary to this

advice, Mr. Aragon insisted that he be permitted to tell the “whole story.” He

then admitted to having a hacksaw blade, to being in the cell, that his cellmate

was not involved, and that he had merely pretended to cut the cell bar.

      To prevail on an ineffective assistance of counsel claim, Mr. Aragon must

establish both that counsel’s performance objectively fell below the standard of

reasonableness and that the deficient performance was prejudicial. See

Strickland v. Washington , 466 U.S. 668, 687-88 (1984) . He must overcome the

strong presumption that counsel’s decisions “might be considered sound trial

strategy.” Id. at 689 (quotation omitted).


                                             -3-
      Mr. Aragon primarily faults counsel for not interviewing Mr. Martinez and

being prepared to present him at trial. He asserts he was thereby prejudiced

because he was “forced” to testify based on his opinion that counsel had not

adequately prepared his defense prior to trial. He contends that if counsel had

interviewed the witness, he would have been convinced of counsel’s “good faith”

and “may well have” followed counsel’s advice not to testify. Aplt. Br. at 26.

      A criminal defendant has a fundamental constitutional right to testify in his

own behalf at trial. Rock v. Arkansas, 483 U.S. 44, 49-52 (1987). “This right is

personal to the defendant and cannot be waived either by the trial court or by

defense counsel.” United States v. Teague, 953 F.2d 1525, 1532 (11th Cir.

1992). “The wisdom or unwisdom of the defendant’s choice does not diminish

his right to make it.” Wright v. Estelle, 572 F.2d 1071, 1079 (5th Cir. 1978); see

also United States v. Janoe, 720 F.2d 1156, 1161 & n.10 (10th Cir. 1983)

(defendant, not counsel, makes the decision whether to testify). “[T]he client . . .

is the master of his . . . defense.” Teague, 953 F.2d at 1533.

      Defense counsel is responsible for advising his client of his right to testify

or not to testify and of the strategic implications of each choice. “[I]f counsel

believes that it would be unwise for the defendant to testify, counsel may, and

indeed should, advise the client in the strongest possible terms not to testify.”

Teague, 953 F.2d at 1533. Mr. Aragon’s counsel did so here.


                                         -4-
      The New Mexico Court of Appeals viewed counsel’s advice to Mr. Aragon

as trial strategy, and Mr. Aragon does not contest the state trial court’s

conclusion that his “silence may well have resulted in an acquittal.” Aplt. Br. at

26. While Mr. Aragon argues that counsel’s failure to interview Mr. Martinez

prior to trial itself indicates counsel’s ineffectiveness, counsel had an affidavit

from Mr. Martinez and therefore knew what his testimony would be. Given the

deference we owe the New Mexico Court of Appeals under the heightened

AEDPA standard, we cannot say the court unreasonably applied Strickland in

deciding Mr. Aragon had failed to establish he received ineffective assistance of

counsel. See 28 U.S.C. § 2254(d)(1).

      Mr. Aragon also argues he was denied a fair trial due to statements made

by the prosecutor. Prosecutorial misconduct warrants habeas relief only if it so

infects the trial “as to make the resulting conviction a denial of due process.”

Mayes v. Gibson , 210 F.3d 1284, 1293 (10th Cir. 2000)       (quoting Donnelly v.

DeChristoforo , 416 U.S. 637, 643 (1974)),      cert. denied , 531 U.S. 1020 (2000).

After considering the prosecutor’s comments in the context of the proceeding as a

whole, see id. and applying the AEDPA standard, we are not persuaded the

conduct rose to a level that rendered Mr. Aragon’s conviction a denial of due

process. We reject Mr. Aragon’s claim of prosecutorial misconduct substantially




                                          -5-
for the reasons stated by the magistrate judge in his report and recommendation as

adopted by the district court in its order of October 10, 2001.

      We AFFIRM the judgment of the district court.



                                                     Entered for the Court



                                                     Stephanie K. Seymour
                                                     Circuit Judge




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