                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                   UNITED STATES CO URT O F APPEALS
                                                                October 17, 2007
                                                  Elisabeth A. Shumaker
                            TENTH CIRCUIT             Clerk of Court



 M A RG O PA TSC HEC K,

       Petitioner–Appellant,

 v.
                                                        No. 07-2046
                                                  (D.C. No. 05-CV-190-JB)
 W ILLIAM SN ODGRASS, W arden,
                                                         (D . N.M .)
 New M exico W omen’s Correctional
 Facility; A TTO RN EY G EN ER AL
 FO R TH E STA TE O F N EW M EXICO,

       Respondents–Appellees.



                            OR DER DENYING
                     CERTIFICATE O F APPEALABILITY


Before L UC ER O, HA RTZ, and GORSUCH, Circuit Judges.


      M argo Patscheck requests a certificate of appealability (“COA”) to appeal

the district court’s denial of her 28 U.S.C. § 2254 habeas petition. For

substantially the same reasons set forth by the district court, we DENY a COA

and DISM ISS the appeal.

      M argo Patscheck and her husband Richard were accused of sexually

abusing her two children from a previous marriage. Initially, Patscheck and her

husband were represented by private counsel, and it was at that point they

allegedly agreed to pursue a joint defense and deny all the allegations against
them. Later, public defender James Bierly was appointed to represent them, and

he was also told they wanted to pursue a joint defense of complete innocence.

Finally, before trial, the district court appointed separate counsel for Patscheck’s

husband, and Bierly continued to represent Patscheck.

      After a jury trial, Patscheck was convicted of multiple counts of criminal

sexual penetration, criminal sexual contact with a minor, and conspiracy in

violation of N.M . Stat. §§ 30-9-11, 30-9-13, & 30-28-2. On October 21, 1998,

she was sentenced to 94 ½ years’ imprisonment and given credit for 167 days of

time already served.

      Patscheck appealed her conviction and sentence to the N ew M exico C ourt

of Appeals, which vacated two counts for insufficient evidence. On remand for

resentencing, Patscheck received a sentence of 73 ½ years. She filed a petition

for writ of certiorari, which was denied by the New M exico Supreme Court. She

then filed a motion for post-conviction relief in state court, alleging that she had

been denied her rights to due process and effective assistance of counsel. After

the state court denied relief, and the New M exico Supreme Court declined to

grant certiorari, Patscheck filed the present § 2254 petition for habeas relief in

federal district court.

      In her federal habeas petition, Patscheck alleges that she was denied her

right to effective assistance of counsel, because both her initial private counsel

and her trial lawyer operated under an actual conflict by representing both her and

                                         -2-
her husband, and because her lawyers failed to investigate and present possible

defenses. She also claims that she was denied due process because the trial judge

was biased against her and her attorney. Finding that no constitutional violations

occurred, the magistrate judge recommended that the petition be denied.

Patscheck filed objections to the magistrate’s report and recommendation. The

district court adopted the majority of the recommendations, but directed the

magistrate judge to reconsider whether Patscheck had exhausted her claim that

counsel incompetently failed to interview her son as a potential witness. Upon

reconsideration, the magistrate judge recommended dismissing this claim as well.

Adopting all of the magistrate’s recommendations, the district court dismissed

Patscheck’s petition and denied a COA. 1 She now seeks a COA from this court to

appeal that decision. 2

      Under A EDPA, a petitioner is entitled to habeas relief only if a state court

decision was “contrary to, or involved an unreasonable application of, clearly


      1
        Because the district court did not act on the issue of a COA within thirty
days of Patscheck’s notice of appeal, the COA is deemed denied. 10th Cir. R.
22.1(C).
      2
         Because Patscheck was denied a CO A, she may not appeal the district
court’s decision absent a grant of a COA by this court. 28 U.S.C.
§ 2253(c)(1)(A). A COA may be issued “only if the applicant has made a
substantial showing of the denial of a constitutional right.” § 2253(c)(2). This
requires Patscheck to show “that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Slack v. M cDaniel, 529 U.S. 473, 484 (2000) (quotations
omitted).

                                        -3-
established Federal law, as determined by the Supreme Court of the United

States” or “based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A

federal court “may not issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly. Rather, that application must

also be unreasonable.” W illiams v. Taylor, 529 U.S. 362, 411 (2000). W e review

a district court’s legal analysis of a state court decision de novo. Turrentine v.

M ullin, 390 F.3d 1181, 1189 (10th Cir. 2004).

      Patscheck first argues that the state court misapplied federal law in

adjudicating her claims of ineffective assistance of counsel. In order to prevail on

a claim of ineffective assistance of counsel, Patscheck must show that her

attorneys’ performance fell below an objective standard of reasonableness and

that the deficient performance prejudiced her defense. Strickland v. W ashington,

466 U.S. 668, 687 (1984). W e indulge a strong presumption that counsel’s

conduct fell within the wide range of reasonable professional assistance. Rogers

v. United States, 91 F.3d 1388, 1392 (10th Cir. 1996).

      W ith respect to her ineffectiveness claim, Patscheck presents two main

arguments: (1) Her trial counsel operated under an actual conflict of interest by

representing both her and her husband; and (2) Counsel failed to investigate and

present a defense based on Battered W omen’s Syndrome. Because Patscheck

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never raised an objection to the multiple representation at trial, she must

demonstrate that an actual conflict of interest adversely affected her lawyer’s

performance. Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).

      Patscheck argues that if she had separate counsel from the beginning, she

would have presented a defense of duress. She claims that her husband forced her

to participate in the assaults on her children, that she never harmed her children

when her husband was not present, and that she was unable to refuse her

husband’s demands because she suffered from Battered W omen’s Syndrome. A

duress defense would clearly conflict with her husband’s interests, and thereby

create an actual conflict for joint counsel. Patscheck, however, never suggested

this defense to her counsel, nor did she ever admit to counsel that she had

comm itted the alleged acts. Instead, she continuously asserted a defense of

complete innocence, as did her husband. In her habeas petition, Patscheck claims

that both her private counsel and Bierly failed to spend adequate time with her

alone to determine if her interests really were aligned with her husband’s.

      Although it is possible that counsel may err by failing to meet separately

with each co-defendant, Patscheck has presented no evidence to suggest how

frequently or infrequently she met with her counsel, and what effect, if any, it had

on her representation. 3 In fact, in dismissing her state habeas claim, the New

      3
       Patscheck alleges that at an evidentiary hearing, Bierly admitted that
although he orally advised the couple about a conflict of interest, he did not
                                                                       (continued...)

                                         -5-
M exico Court of Appeals held that: (1) invoices from Patscheck’s initial private

attorney show that counsel repeatedly conferred with Patscheck about the

indictment and the status of the case; (2) Richard Patscheck was appointed

separate counsel before trial; (3) evidence presented at trial showed that

Patscheck had committed criminal acts against her children when her husband was

absent and without his direction; and (4) the results of a mental status

examination did not indicate any significant cognitive defects or severe

psychopathology. Patscheck has failed to present any evidence that would lead us

to conclude that these holdings were “based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d)(2).

      Given these factual determinations, Patscheck’s claim regarding a conflict

of interest fails. Because she asserted a defense of innocence consistent with her

husband’s defense, even after she received independent counsel and after she was

convicted, she has not shown an actual conflict of interest. M oreover, because

she had separate representation at trial, any alleged conflict did not exist at trial.

Thus Patscheck has failed to meet her burden of showing specific instances to

support her claim of an actual conflict, United States v. Burney, 756 F.2d 787,




      3
       (...continued)
investigate it further or obtain a written waiver of the conflict. On appeal,
Patscheck has not provided a transcript of this hearing.

                                         -6-
792 (10th Cir. 1985), and we conclude that the state court’s denial of her claim

was not unreasonable.

      W ith respect to her second basis for her ineffective assistance of counsel

claim, Patscheck argues that counsel failed to adequately investigate a defense of

duress, based on her allegedly suffering from Battered W omen’s Syndrome.

Notably, “[t]he reasonableness of counsel’s actions may be determined or

substantially influenced by the defendant’s own statements or actions.”

Strickland, 466 U.S. at 691. In the present case, Patscheck consistently denied

any wrongdoing. In order to prevail on a duress defense, Patscheck would have

had to admit that she committed the acts of abuse and claim that she was coerced

into comm itting them. Because Patscheck never conceded her involvement in the

abuse, the state court’s decision to dismiss her ineffectiveness claim on this point

was not contrary to, or an unreasonable application of, Strickland.

      Patscheck raises several other grounds for her ineffectiveness claim,

including counsel’s failure to consult an expert witness on Battered W omen’s

Syndrom. For substantially the same reasons as the district court, we determine

that Patscheck has failed to show that the state court’s determination of these

issues involved an unreasonable interpretation of federal law.

      Finally, Patscheck claims that she was denied due process, because the

judge in her case was biased against her and her trial counsel, Bierly. Several

months prior to her trial, the judge stated he intended to recuse himself from

                                         -7-
future cases in which her counsel was involved because of his personal dislike for

Bierly. The judge also said privately that in his view , 95 percent of people

charged with crimes were guilty. He later recanted these statements at a pre-trial

hearing, and suggested that the jury, rather than he, would ultimately decide

Patscheck’s guilt or innocence.

      W e apply a presumption of judicial integrity in such cases, and require a

defendant to show that the judge has “a strong, direct interest in the outcome of a

case.” Fero v. Kerby, 39 F.3d 1462, 1479 (10th Cir. 1994) (quotation and citation

omitted). Admittedly, these statements undermine the appearance of impartiality

we expect judges to maintain. Yet “bad appearances alone” are insufficient to

justify disqualification; Patscheck must show “some actual incentive to find one

way or another.” Id. (quotation and citation omitted). The judge’s statements do

not indicate that he had a direct interest in the outcome of the jury trial, nor has

Patscheck shown any actual incentive for the judge to encourage the jury to find

her guilty. Accordingly, we conclude that the state court did not reach a decision

contrary to or involving an unreasonable application of federal law.

      W e D EN Y a COA, and DISM ISS the appeal.

                                               Entered by the C ourt



                                               Carlos F. Lucero
                                               Circuit Judge



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