                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 17 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    DANNY RAY COATES,

                Petitioner-Appellant,

    v.                                                    No. 99-2196
                                                (D.C. No. CIV-96-653-LH/JHG)
    JOHN SHANKS, Warden;                                   (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , McKAY , and HENRY , 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      This order and judgment is not binding precedent, except under the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.
      In December 1983, petitioner Danny Ray Coates was convicted in a New

Mexico state court of murder, armed robbery, and unlawful taking of a motor

vehicle. His conviction was affirmed on direct appeal.      See State v. Coates ,

707 P.2d 1163 (N.M. 1985). Appearing pro se, petitioner filed a petition for a

writ of habeas corpus under state law in 1995. It was denied.

      In May 1996, petitioner, still pro se, filed the underlying petition for writ of

habeas corpus under 28 U.S.C. § 2254. The district court originally held the

petition to be time-barred and petitioner appealed. This court held that the

petition was timely and remanded for further proceedings.      See Coates v. Shanks ,

No. 97-2005 (10th Cir. June 23, 1997) (order and judgment).

      On remand, the district court appointed counsel for petitioner and the State

moved to dismiss the petition. The magistrate judge recommended that three of

petitioner’s issues be dismissed because they were based solely on state law and

were not cognizable in federal habeas corpus. The magistrate judge also

suggested that one of those issues was procedurally defaulted. The district court

adopted the recommendation and dismissed those three claims. The magistrate

judge then thoroughly analyzed the rest of petitioner’s issues on the merits and

recommended that relief be denied without a hearing. The district court adopted

this recommendation as well, denying petitioner’s request for a hearing, his

petition for habeas relief, and his request for a certificate of appealability under


                                           -2-
28 U.S.C. § 2253(c). Petitioner appeals and renews his application for a

certificate of appealability in this court.


                                              I.

       At the time of the events involved here, petitioner was living with his

grandmother in one side of a duplex owned by Louise Cecil. Ms. Cecil lived in

the other side of the duplex. She died on August 25 or 26, 1982, from massive

trauma to the left side of the head.   See Trial Tape 6. The medical evidence at

trial was that the victim’s injury was caused by a single, forceful blow from a

blunt, linear instrument and that death was relatively instantaneous.      See id.

Petitioner was apprehended driving her car with her keys a few hours after her

body was discovered.


                                              II.

       Because petitioner filed his federal habeas petition in May 1996, it is

governed by the provisions of the Antiterrorism and Effective Death Penalty Act

of 1996 (AEDPA).      See Slack v. McDaniel , 120 S. Ct. 1595, 1602 (2000). The

Supreme Court has recently clarified the standard to be applied by federal courts

under 28 U.S.C. § 2253 as revised by AEDPA.          See id. at 1603-04.

       “Under AEDPA, a COA may not issue unless ‘the applicant has made a

substantial showing of the denial of a constitutional right.’”     Id. at 1603 (quoting


                                              -3-
§ 2253(c)). Whether the district court’s decision was on procedural grounds or on

the merits, petitioner must show that “reasonable jurists” would find that the

district court’s decision was “debatable or wrong.”     Id. at 1604. We conclude that

petitioner has not demonstrated his entitlement to a certificate of appealability on

any of his issues on appeal.


                                           III.

                                            A.

      First, petitioner argues that the prosecution was vindictive.

      As noted by the New Mexico Supreme Court, petitioner was originally

charged by criminal complaint with all three charges for which he was ultimately

tried and convicted--murder, armed robbery, and unlawful taking of a motor

vehicle. See Coates , 707 P.2d at 1165. Evidence on all three charges was

presented at the preliminary hearing and the magistrate judge announced from the

bench that petitioner was bound over on all three charges.    See id. at 1166. The

written bind-over order charged petitioner only with murder with a deadly

weapon, however, and the first criminal information charged petitioner only with

murder with a deadly weapon.      See id. at 1165. Trial began, but ended in a

mistrial on the second day because two jurors had read inadmissible evidence in

the newspaper.   See id. The State filed an amended information charging

petitioner with murder, armed robbery, and unlawful taking of a motor vehicle.

                                           -4-
See id. Petitioner asserts that the addition of two more charges after he

successfully moved for a mistrial constituted prosecutorial vindictiveness in

violation of the Due Process Clause.

       The New Mexico Supreme Court decided that the trial court did not err by

refusing to quash the amended information.         See id. at 1168. It held that, under

the circumstances, the State’s failure to include all three charges in the first

criminal information was improvident, but not vindictive, unfair, or vexatious.

See id. at 1167-68.

       The district court adopted the magistrate judge’s analysis of this issue. The

magistrate judge correctly reviewed petitioner’s vindictive prosecution claim in

light of the standard that although the purpose of instituting criminal proceedings

against an individual is to punish him, “[t]o punish a person because he has done

what the law plainly allows him to do is a due process violation of the most basic

sort.” United States v. Goodwin , 457 U.S. 368, 372 (1982) (quotation omitted).

The Supreme Court has stated that “in certain cases in which action detrimental to

the defendant has been taken after the exercise of a legal right, the Court has

found it necessary to ‘presume’ an improper vindictive motive.”         Id. at 373.

However, “the Court has done so only in cases in which a reasonable likelihood

of vindictiveness exists.”   Id. The magistrate judge concluded that petitioner had

not shown either actual vindictiveness or a reasonable likelihood of


                                             -5-
vindictiveness under the circumstances, and had not overcome the presumption of

correctness to be accorded the state court’s finding.   See R., vol. I, doc. 45, at 5-

7. Petitioner has not shown that the district court’s assessment of this claim is

debatable or wrong.    See Slack , 120 S. Ct. at 1604. He is not entitled to a

certificate of appealability on this issue.


                                              B.

       Second, petitioner argues that his Sixth Amendment right to an impartial

jury was violated by the trial court’s failure to declare a mistrial when a venire

member disclosed during voir dire that he was the warden at the correction center

and knew petitioner. The New Mexico Supreme Court set out this brief

conversation, which ended with the trial judge excusing the venire member.        See

Coates , 707 P.2d at 1168. The court concluded that petitioner’s argument was

based on mere speculation, as there was no evidence showing that the remaining

jurors were prevented from making a fair decision.      See id.

       The district court adopted the magistrate judge’s analysis of this issue. The

magistrate judge reviewed the argument in light of the Supreme’s Court’s

standard that “[a] trial court’s findings of juror impartiality may be overturned

only for manifest error.”   Mu’Min v. Virginia , 500 U.S. 415, 428 (1991)

(quotations omitted). He held that petitioner had failed to identify any actual or

probable prejudice on the part of any juror to demonstrate a due process violation

                                              -6-
and had failed to overcome the presumption that the state court’s finding is

correct. See R., vol. I, doc. 45, at 8-9. Petitioner has not shown that the district

court’s conclusion is debatable or wrong.     See Slack , 120 S. Ct. at 1604. He is

not entitled to a certificate of appealability on this issue.


                                            C.

      Third, petitioner argues that his right to due process was violated by the

trial court’s admission into evidence of a pry bar and a hammer as the weapons

allegedly used to murder the victim. Petitioner did not raise this issue in his

objections to the magistrate judge’s recommendation.       See R., vol. I, doc. 46.

Therefore, this issue is deemed waived on appeal.      See Fymbo v. State Farm Fire

& Cas. Co. , 213 F.3d 1320, 1321 (10th Cir. 2000).


                                            D.

      Fourth, petitioner argues that his right to due process was violated by the

trial court’s failure to grant a mistrial when state witnesses manipulated their

testimony by discussing the case outside of court, contrary to New Mexico Rule

of Evidence 615. Petitioner did not raise this issue in his objections to the

magistrate judge’s recommendation.      See R., vol. I, doc. 46. Therefore, this issue

is deemed waived on appeal.     See Fymbo , 213 F.3d at 1321.




                                            -7-
                                             E-F.

       In his fifth and sixth issues, petitioner maintains that his right to due

process was violated by convictions for armed robbery and first degree murder

that were not supported by sufficient evidence. He argues that the State failed to

present evidence to prove the element of forceful taking of an object from another

required under New Mexico law, and failed to present evidence to prove that he

killed the victim or that he deliberately intended to take away her life. The New

Mexico Supreme Court reviewed the evidence in the light most favorable to the

prosecution and found that it was sufficient to support the convictions.       See

Coates , 707 P.2d at 1169-70.

       The district court adopted the magistrate judge’s analysis of this issue. The

magistrate judge reviewed the contention in light of the Supreme Court standard

that “the relevant question is whether, after viewing the evidence in the light most

favorable to the prosecution,     any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.”         Jackson v. Virginia ,

443 U.S. 307, 319 (1979). He concluded that the evidence was sufficient to

support both convictions.       See R., vol. I, doc. 45, at 9-10. Petitioner has not

shown that the district court’s assessment of this claim is debatable or wrong.

See Slack , 120 S. Ct. at 1604. He is not entitled to a certificate of appealability

on these issues.


                                              -8-
                                               G.

       Seventh, petitioner asserts that his right to due process was violated by the

trial court’s refusal to consider his amnesia in determining his competency to

stand trial. Petitioner asserted his incompetency at trial when the State called a

witness to provide evidence of premeditation arising from a phone conversation

the witness claimed to have had with petitioner on the night before the victim was

found dead. See Coates , 707 P.2d at 1170. Petitioner asserted that he could not

remember the conversation due to amnesia, an alcoholic blackout, an epileptic

seizure, or a combination of those impairments, and could not assist his attorney

in his defense.   See id.

       The New Mexico Supreme Court held that the trial court obviously

considered petitioner’s claimed amnesia because it held a competency hearing.

See id. Nevertheless, the court held that there remained an issue as to whether

petitioner’s competence to stand trial should have been submitted to the jury

instead of being decided by the trial judge.         See id. The court concluded that the

trial court did not err in deciding the issue, as petitioner’s lack of memory

“existed all along and should not have been triggered by [the State’s witness’s]

forthcoming testimony.”        Id. The court pointed out that the State’s witness was

named on the State’s witness list, and petitioner could have asserted his claim of

incompetency earlier.       See id.

                                               -9-
       The district court adopted the magistrate judge’s analysis of this issue. The

magistrate judge reviewed the claim under the Supreme Court’s standard asking

whether the defendant “has sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding--and whether he has a rational

as well as factual understanding of the proceedings against him.”             Dusky v.

United States , 362 U.S. 402, 402 (1960) (per curiam).

       We observe that petitioner contradicts his claim of incompetency in his

federal habeas petition. Petitioner states that he was not drunk on the night

before the victim was discovered,     see R., vol. I, doc. 1, at 5(fff), did not make a

phone call to the State’s witness that night,          see id. at 5(fff)-5(ggg), and “could

have recalled his whereabouts at approximately all times that night and the day of

the 26th of August,” id. at 5(ggg). Because the petition is verified and asserts

facts within petitioner’s personal knowledge, it may be treated as an affidavit.

See Jaxon v. Circle K Corp. , 773 F.2d 1138, 1139 n.1 (10th Cir. 1985). Petitioner

is therefore not entitled to a certificate of appealability on this issue.


                                                H.

       Eighth, petitioner asserts that he was denied his Sixth Amendment right to

effective assistance of counsel by his counsel’s failure to: (A) investigate his

competency and move for a competency hearing prior to trial; (B) investigate the

charge of first degree murder resulting in reliance at trial on an untimely raised

                                                -10-
competency motion and ineffectively presented alibi defense; (C) consult with

him during trial, resulting in ignorance of his drug-impaired state that prevented

him from assisting in his own defense.

      A claim of ineffective assistance of counsel is governed by    Strickland v.

Washington , 466 U.S. 668 (1984).    See Williams v. Taylor , 120 S. Ct. 1495, 1511

(2000). To establish ineffectiveness, petitioner must prove: (1) that counsel’s

performance fell below an objective standard of reasonableness,     Strickland ,

466 U.S. at 688; and (2) that the deficient performance prejudiced the defense,

which requires a showing that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different, id. at 694. See Williams , 120 S. Ct. at 1511-12.

      Because petitioner is not entitled to a certificate of appealability on his

claims of vindictive prosecution or incompetency, he is not entitled to a

certificate of appealability on his claim of ineffective assistance of counsel.


                                           I.

      Ninth, petitioner argues that the district court erred in denying him an

evidentiary hearing on his claims of prosecutorial vindictiveness and ineffective

assistance of counsel.

      We find no error. A federal district court is precluded from holding a

hearing on a habeas claim “[i]f the applicant has failed to develop the factual

                                          -11-
basis of [his] claim in State court proceedings,” unless the applicant has satisfied

one of the specified exceptions to this rule. 28 U.S.C. § 2254(e)(2);     see also

Williams v. Taylor , 120 S. Ct. 1479, 1487 (2000). “[A] failure to develop the

factual basis of a claim is not established unless there is lack of diligence, or

some greater fault, attributable to the prisoner or the prisoner’s counsel.”

Williams , 120 S. Ct. at 1488.

       Petitioner concedes that he did not request a hearing in state court, which

demonstrates his lack of diligence in pursuing the development of his claims. He

does not argue that any of the exceptions to § 2254(e)(2) applies.      See Valdez v.

Ward , No. 99-6147, 2000 WL 1034637, at *4 (10th Cir. July 27, 2000). His

argument that his habeas petition should be construed as a request for a hearing

because he was pro se when he appeared in state court was made for the first time

in his objections to the magistrate judge’s findings and recommendation, and is

waived. See Marshall v. Chater , 75 F.3d 1421, 1426 (10th Cir. 1996). We

conclude that petitioner was not entitled to a hearing in federal court.


                                       Conclusion

       We conclude that petitioner has not made a substantial showing of the

denial of a constitutional right. We therefore deny his application for a certificate

of appealability. The appeal is DISMISSED.



                                           -12-
       Entered for the Court



       Robert H. Henry
       Circuit Judge




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