                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                    TENTH CIRCUIT                            October 5, 2012

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court

 RICHARD WATERHOUSE,

           PetitionerAppellant,

 v.                                                           No. 12-2096
                                                   (D.C. No. 1:11-CV-00685-JB-CG)
 TIMOTHY HATCH, Warden,                                        (D.N.M.)

           RespondentAppellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, O’BRIEN, and MATHESON, Circuit Judges.


       Richard Waterhouse, a New Mexico state prisoner proceeding pro se, seeks a

certificate of appealability (“COA”) to appeal the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition. We deny a COA and dismiss the appeal.

                                              I

       In 2002, Waterhouse was indicted on three counts of criminal sexual penetration

of a minor in the first degree and one count of intimidation of a witness in the third

       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
degree. He pled guilty to two counts of criminal sexual penetration in the second degree

pursuant to the plea agreement. Under that agreement, the district attorney dismissed the

remaining claims, and reduced Waterhouse’s potential prison term from over 103.5 years

to twenty-six years. Waterhouse was sentenced to twenty-two years’ imprisonment with

four years suspended. The New Mexico Court of Appeals dismissed Waterhouse’s direct

appeal, and the New Mexico Supreme Court quashed a writ of certiorari after initially

granting it.

       Waterhouse timely filed a § 2254 habeas petition, asserting ineffective assistance

of counsel due to the failure of various court-appointed attorneys to investigate his case,

and to correctly advise him of his sentencing exposure. Waterhouse’s petition was

reviewed by a magistrate judge, who recommended that the petition be denied because

Waterhouse failed to show that he would have declined the state’s plea offer but for his

attorneys’ errors. Over Waterhouse’s objections, the district court adopted the magistrate

judge’s recommendations and dismissed the petition.

                                             II

       A petitioner may not appeal the denial of habeas relief under § 2254 without a

COA. 28 U.S.C. § 2253(c)(1). We will grant a COA only if Waterhouse shows “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. McDaniel, 529 U.S. 473, 484


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(2000) (quotations omitted). To prevail on the merits, Waterhouse must demonstrate that

the state court’s adjudication of his claims either “resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented” or was

“contrary to, or involved an unreasonable application of, clearly established Federal law.”

§ 2254(d)(1), (2).

       We are in substantial agreement with the reasoning of the district court and

conclude that reasonable jurists could not debate its rulings. To succeed on an ineffective

assistance of counsel claim, a litigant must show that his counsel’s performance fell

below an objective standard of reasonableness and that there was a reasonable probability

that his counsel’s deficiencies influenced the outcome of the proceeding. Strickland v.

Washington, 466 U.S. 668 (1984). However, when “a defendant complains that

ineffective assistance led him to accept a plea offer as opposed to proceeding to trial, the

defendant will have to show ‘a reasonable probability that, but for counsel’s errors, he

would not have pleaded guilty and would have insisted on going to trial.’” Missouri v.

Frye, 132 S. Ct. 1399, 1409 (2012) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

       On appeal, Waterhouse advances several arguments. First, he contends that his

counsel failed to discover “valuable exculpatory facts.” Waterhouse alleges that the

victim told inconsistent stories about the molestation, that the victim’s mother eventually

doubted her daughter’s version of events, and that he could not have had access to the

victim during the time indicated in the indictment because he lacked custody of the


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victim. However, we agree with the district court’s conclusion that Waterhouse has not

demonstrated prejudice. He has not shown that “but for counsel’s errors, he would not

have pleaded guilty.” Hill, 474 U.S. at 58 (quotation omitted).

       Second, Waterhouse argues that the district court erred in concluding that his

counsel’s failure to secure expert testimony was not prejudicial. Had counsel consulted

with an expert witness regarding the victim’s credibility, Waterhouse claims, they would

have discovered her “truth-telling problem” and motives to fabricate charges against

Waterhouse. While this failure may have constituted deficient performance under

Strickland, we agree with the district court in its determination that the potential value of

such expert testimony would be speculative. See Boyle v. McKune, 544 F.3d 1132,

1138-39 (10th Cir. 2008) (claim that medical experts could have refuted evidence of non-

consensual sexual contact is too speculative to demonstrate prejudice).

       Finally, Waterhouse contends that the district court ignored evidence of prejudice

due to severe understaffing at the Public Defender’s office and his counsel’s erroneous

sentencing advice. Waterhouse’s counsel incorrectly informed him that the Earned

Meritorious Deduction Act, N.M. Stat. § 33-2-34 (“EDMA”) would not apply to his

sentence, and that Waterhouse would serve only fifty percent of his sentence, rather than

the eighty-five percent actually required. Despite the clear error of this advice, the state

court reasonably concluded that accurate advice about EDMA would not have changed

Waterhouse’s decision to plead guilty. Offering only conclusory statements that he


                                            –4–
would not have pled guilty but for the information about EDMA, Waterhouse fails to

overcome the deference we owe to the state court’s determination. See § 2254(d).

                                          III

      We DENY a COA and DISMISS the appeal.


                                        Entered for the Court



                                        Carlos F. Lucero
                                        Circuit Judge




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