                                                                            FILED
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                         July 1, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                         Clerk of Court
                                  TENTH CIRCUIT



 CHARLES EDWARD WESLEY,

                 Petitioner-Appellant,                     No. 07-2299
          v.                                          District of New Mexico
 PATRICK SNEDEKER, Warden,                      (D.C. No. 1:04-CV-00017-JB-DJS)

                 Respondent-Appellee.


               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before TACHA, KELLY and McCONNELL, Circuit Judges.


      Charles Edward Wesley, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(A). Because we conclude that Mr. Wesley has failed to make

“a substantial showing of the denial of a constitutional right,” we deny his request

for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).

                                         Background

      In August 1997, Charles Wesley was indicted and charged with five counts

of first degree criminal sexual penetration and three counts of criminal sexual


      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
contact of a minor. He was tried before a jury in a New Mexico state court in

September of 1999, and was convicted of one count of criminal sexual penetration

in the first degree and three counts of criminal sexual contact of a minor. He was

sentenced to a period of thirty-one years’ imprisonment, nine of which were

suspended. He filed an unsuccessful direct appeal; he subsequently filed a state

habeas petition, which was also denied. He then sought federal habeas relief

under 28 U.S.C. § 2254. On May 31, 2005, the district court dismissed his

petition as untimely. In the alternative, the court found that the claims were

either meritless or procedurally defaulted.

      A panel of this Court initially denied his petition for a COA, holding that it

was time barred. Wesley v. Snedeker, 159 Fed. App’x 872 (10th Cir. 2005).

While his petition for rehearing was pending, however, the state conceded that it

had erred in its tolling calculation and that Mr. Wesley’s federal habeas petition

was timely. See Wesley v. Snedeker, 167 Fed. App’x 64 (10th Cir. 2006). We

therefore reversed the district court’s decision and remanded the case for

reconsideration. The district court referred the case to a magistrate judge, who

found that all of Mr. Wesley’s claims were without merit. The district court

accepted the magistrate’s recommendations, holding that the state court had not

arrived at any conclusions that were “contrary to, or 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). The district court also denied Mr.

Wesley’s motion for a COA.

      Mr. Wesley requests that we grant a COA on several issues, including

ineffective assistance of trial and appellate counsel, a violation of his right to a

speedy trial, prosecutorial and judicial misconduct, and a violation of his right to

testify in his own defense.

                                      Discussion

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA will issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). In order

to make such a showing, a petitioner must demonstrate that “reasonable jurists

could debate whether . . . 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. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted).

                              A. Right to a Speedy Trial

        Mr. Wesley first claims that his right to a speedy trial was violated when

the state took twenty-seven months to bring the case to trial. The New Mexico

Court of Appeals held that the twenty-seven months was presumptively

prejudicial, but nonetheless found that Mr. Wesley’s right to a speedy trial was

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not violated. We agree. The Supreme Court has articulated four factors relevant

to determining whether a defendant has been deprived of his right to a speedy

trial: (1) the length of the delay; (2) the reason for the delay; (3) the extent to

which the defendant asserted his speedy trial rights; and (4) the prejudice to the

defendant. Barker v. Wingo, 407 U.S. 514, 530–32 (1972). Mr. Wesley

absconded the jurisdiction for almost a year in violation of the conditions of his

pretrial release, and he did not assert his speedy trial claim until after the trial

occurred. See id. at 531. Much of the delay is therefore attributable to his own

poor choices, and not any action by the state.

                            B. Prosecutorial Misconduct

      Mr. Wesley makes several allegations of prosecutorial misconduct. To

succeed on a claim of prosecutorial misconduct, the defendant must show that

“there was a violation of [his] federal constitutional rights which so infected the

trial with unfairness as to make the resulting conviction a denial of due process.”

Fero v. Kerby, 39 F.3d 1462, 1474 (10th Cir. 1994) (citing Donnelly v.

DeChristoforo, 416 U.S. 637, 642 (1974)). He argues that the prosecutor

tampered with evidence–specifically, a videotape of the interview with the

victim—and that the prosecutor failed to inform him of prior accusations of abuse

made by the victim. Mr. Wesley did not make this claim in his certiorari petition

to the New Mexico Supreme Court. Failure to seek discretionary relief from the

New Mexico Supreme Court in a state postconviction proceeding constitutes

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failure to exhaust, which transforms into procedural default once the time for

seeking such review expires. Ballinger v. Kerby, 3 F.3d 1371, 1374 (10th Cir.

1993); see also Watson v. State, 45 F.3d 385, 387 (10th Cir. 1995). Mr. Wesley

has defaulted this claim.

                                 C. Griffin Violation

      Mr. Wesley also argues that the prosecutor made an impermissible

comment on his failure to testify at trial in violation of Griffin v. California, 380

U.S. 609, 614–15 (1965) . Whatever the merits of this claim, he did not raise it on

direct appeal, nor did he raise it in his state habeas petition. The claim is

therefore unexhausted and procedurally defaulted. See Cannon v. Gibson, 259

F.3d 1253, 1266 n.11 (10th Cir. 2001).

                                 D. Brady Violation

      As his final claim of prosecutorial error, Mr. Wesley argues that the

prosecution withheld exculpatory evidence in violation of Brady v. Maryland,

373 U.S. 83, 87 (1963). Brady holds that the prosecution’s suppression of

“evidence favorable to an accused . . . violates due process where the evidence is

material either to guilt or to punishment.” Id. at 87. To establish a Brady

violation, a habeas petitioner must demonstrate that “(1) the prosecutor

suppressed evidence; (2) the evidence was favorable to the defendant as

exculpatory or impeachment evidence; and (3) the evidence was material.”

Gonzales v. McKune, 247 F.3d 1066, 1075 (10th Cir. 2001) vacated in part on

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other grounds, 279 F.3d 922, 924 (10th Cir. 2002) (en banc). “[E]vidence is

material if there is a reasonable probability that, had the evidence been disclosed

to the defense, the result of the proceeding would have been different.” Knighton

v. Mullin, 293 F.3d 1165, 1172 (10th Cir. 2002).

      On state habeas, Mr. Wesley presented this claim under the rubric of

ineffective assistance of counsel. R. Vol. II, Brief of Petitioner at 8, 11-13,

Wesley v. Williams, No. 0307-CR-00097-1577 (3d. Dist. Ct. N.M. Jan. 22, 2003).

However, the substance of the claim here is identical to that on state habeas, and

so we will give Mr. Wesley the benefit of the doubt and do not consider it

defaulted.

      Mr. Wesley argues that the government failed to inform him, until two days

before trial, that the vaginal swabs from the rape kit used to test the victim were

lost. Mr Wesley alleges that the swab test results were exculpatory, because they

revealed no traces of baby oil, which the victim claimed Mr. Wesley placed on his

penis prior to penetration. It is not entirely clear whether his complaint is that the

state lost the evidence, or whether it is that he was not informed of the results of

the tests until two days prior to trial. Either way we construe the claim, however,

it fails. Mr. Wesley argued, at trial, that there was little physical evidence of the

rape. Specifically, he argued that during their examination of the victim

following the alleged assault, the doctors found no traces of baby oil. R. Vol. III,

at 293–94 (“You’ve got no evidence from the State Crime Lab, ladies and

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gentlemen, no evidence of Charles Wesley’s hairs on anything, his sperm on

anything and, most importantly, baby oil on anything. . . . Dr. Barksdale didn’t

see any oil or greasy substances. There’s no evidence at all except Amy saying

that that day that that even existed.”). The prosecution did not rebut this claim.

The New Mexico Third Judicial District Court, on state habeas, found that there

was no prejudice. We must give that finding deference, 28 U.S.C. § 2254(d)(1),

and therefore find that there was no violation.

                              E. Judicial Misconduct

      Mr. Wesley also accuses the state trial judge of misconduct. He argues that

several evidentiary rulings and the judge’s refusal to dismiss the case on speedy

trial grounds are probative of bias. To demonstrate judicial bias, a defendant must

show either: (1) actual bias; or (2) “that circumstances were such that an

appearance of bias created a conclusive presumption of actual bias.” Fero v.

Kerby, 39 F.3d 1462, 1478 (10th Cir. 1994). Mr. Wesley offers no evidence of

actual bias; he therefore must provide evidence demonstrating “an appearance of

bias sufficient to override the presumption of honesty and integrity.” Id. He

cannot meet this burden. First, there was no speedy trial violation, and so the

judge was correct to deny Mr. Wesley’s motion to dismiss on this ground.

Additionally, “[j]udicial rulings alone almost never constitute a valid basis for a

bias or partiality motion.” Liteky v. United States, 510 U.S. 540, 555 (1994);




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United States v. Grinnell Corp., 384 U.S. 563, 583 (1966). His argument

therefore fails.

                    F. Ineffective Assistance of Trial Counsel

      To establish an ineffective assistance claim warranting reversal of a

conviction, the defendant must show that counsel’s performance was so seriously

deficient as to fall below an objective standard of reasonableness, and that “the

deficient performance prejudiced the defense.” Strickland v. Washington, 466

U.S. 668, 687 (1984). The key question is “whether counsel’s conduct so

undermined the proper functioning of the adversarial process that the

[proceedings] cannot be relied on as having produced a just result.” Id. at 686.

      Mr. Wesley raises a number of claims of ineffectiveness, including his

attorney’s failure to: (1) file a motion to dismiss for a violation of the speedy trial

act; (2) object to the testimony of an unsworn witness; (3) call an expert medical

witness to testify that there was no physical evidence; (4) call an individual who

interviewed the victim and claimed to not believe her story; (5) investigate the

victim’s background or call any of the victim’s family members as witnesses; (6)

present the results of the tests performed by the state; and (7) object to various

instances of judicial and prosecutorial misconduct. He also alleges that his

attorney was deficient for using a videotaped interview with the victim, in lieu of

cross-examination, for impeachment purposes. Ineffective assistance of counsel

claims can be disposed of on either deficiency or prejudice grounds: here, we

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reject all of them because petitioner has failed to demonstrate prejudice. Id. at

697 (“If it is easier to dispose of an ineffectiveness claim on the ground of lack of

sufficient prejudice . . . that course should be followed.”). While Mr. Wesley has

a litany of complaints about trial counsel, some of which go to counsel’s choice

of strategy and some of which go to counsel’s allegedly deficient investigation, he

does not describe at all how a different approach would have changed the

outcome. Though we construe his pleadings liberally, Ledbetter v. City of

Topeka, Kan., 318 F.3d 1183, 1187 (10th Cir. 2003), he must make some proffer

as to how different trial choices would have improved his chances of acquittal.

He has not done this; we therefore cannot find prejudice.

      Mr. Wesley also argues that his counsel deprived him of his Fifth

Amendment right to testify when he told him “[y]ou can’t testify, because you are

mental.” App. for COA 12. “[A] defendant in a criminal case has the right to

take the witness stand and to testify in his or her own defense.” Rock v.

Arkansas, 483 U.S. 44, 49 (1987). The decision to testify or not belongs to the

defendant, though counsel can and should advise him of the implications of this

choice. See Jones v. Barnes, 463 U.S. 745, 751 (1983); Cannon v. Mullin, 383

F.3d 1152, 1171 (10th Cir. 2004); United States v. Teague, 953 F.2d 1525, 1533

(11th Cir. 1992). Counsel, however, “lacks authority to prevent a defendant from

testifying in his own defense, even when doing so is suicidal trial strategy.”




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Cannon, 383 F.3d at 751. If Mr. Wesley’s claim were true, he would meet the

first prong of the Strickland ineffectiveness test. Strickland, 466 U.S. at 694–95.

      Mr. Wesley’s factual allegation, however, is a new one. Before the state

court on both direct appeal and collateral review, he argued that it was the trial

court’s ruling on the admission of impeachment evidence that prevented him from

testifying, because he could not testify without subjecting himself to cross-

examination about harmful prior statements he made. 28 U.S.C. § 2254(e)(2)

prohibits Mr. Wesley from developing new factual assertions not presented in

state court on federal habeas review. His claim that trial counsel deprived him of

his right to testify therefore has no factual basis in the record and is meritless.

                 G. Ineffective Assistance of Appellate Counsel

      Mr. Wesley also claims that his appellate counsel was ineffective for

failing to raise and develop certain factual arguments. As in a proceeding for

ineffective assistance of trial counsel, Mr. Wesley must show that his appellate

counsel’s performance was deficient and that there was prejudice. Strickland, 366

U.S. at 687; Coronado v. Ward, 517 F.3d 1212, 1216 (10th Cir. 2008). Mr.

Wesley does not tell us what factual issues needed further developing, nor does he

identify any arguments that were omitted. We find neither deficient performance

nor prejudice here.




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                             H. Evidentiary Hearing

      Finally, Mr. Wesley alleges that he should receive an evidentiary hearing to

develop his claims. A habeas petitioner is entitled to an evidentiary hearing only

if his claims, if substantiated by evidence disclosed at the hearing, would entitle

him to habeas relief. Miller v. Champion, 161 F.3d 1249, 1253 (10th Cir. 1998).

Because, as we have discussed supra, none of Mr. Wesley’s arguments have

merit, he is not entitled to an evidentiary hearing.

                                     Conclusion

      Accordingly, we DENY Mr. Wesley’s request for a COA and DISMISS

this appeal.

                                                       Entered for the Court,

                                                       Michael W. McConnell
                                                       Circuit Judge




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