                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                February 16, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 THOMAS LEON BAHNEY,

       Petitioner - Appellant,
                                                        No. 09-2216
 v.                                               (D.C. No. 08-CV-01203)
                                                         (D.N.M.)
 JAMES JANECKA, Warden; GARY
 K. KING, Attorney General for the
 State of New Mexico,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Petitioner-Appellant Thomas Leon Bahney, a state prisoner appearing pro

se, seeks a certificate of appealability (“COA”) allowing him to appeal the district

court’s order dismissing his petition for a writ of habeas corpus with prejudice.

28 U.S.C. § 2254. Because Mr. Bahney has not made the “substantial showing of

the denial of a constitutional right” required to obtain a COA, 28 U.S.C. §

2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483-84 (2000), we deny a COA

and dismiss the appeal.

      On March 2, 2007, Mr. Bahney pled guilty to first degree murder pursuant

to a plea agreement and was sentenced to life in prison followed by five years’
parole. 1 R. 125-26, 130-32. The plea agreement also provided that several other

charges would be dismissed. Mr. Bahney did not file a direct appeal, but filed a

state petition for a writ of habeas corpus on July 12, 2007. R. 28-36, 248. In a

summary order, the state district court dismissed the petition with prejudice on

April 14, 2008, and the New Mexico Supreme Court denied certiorari on

November 26, 2008. R. 46, 77. Mr. Bahney timely filed his federal petition for a

writ of habeas corpus on December 29, 2008. R. 4.

      In his federal petition, Mr. Bahney sought relief on four grounds, all of

which alleged violations of his constitutional right to due process: (1) his plea

agreement was coerced; (2) the prosecutor improperly withdrew an initial, more

lenient plea offer; (3) his counsel was ineffective because the counsel failed to

pursue key witnesses and did not move to suppress certain evidence; and (4) the

New Mexico Supreme Court ruled on his certiorari petition before he could reply

to the “outlandish” allegations in the state’s response. R. 19-21. The district

court referred Mr. Bahney’s petition to a magistrate judge, R. 98, who rejected

Mr. Bahney’s claims: his plea was voluntary despite his counsel’s pressure to

accept it; the record contained no evidence that any prior plea offer was binding;

his claims of ineffective assistance of counsel were conclusory and unsupported

and lacked any showing of prejudice; and the procedural claim regarding the New

Mexico Supreme Court was a matter of state law that federal courts cannot

review. R. 245-49.

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      Mr. Bahney filed objections to the magistrate judge’s report. R. 251-56.

The objections repeated some claims made in his original habeas petition: the

withdrawn plea offer and ineffective assistance of counsel. R. 252-53. Mr.

Bahney added some new claims as well: that he is actually innocent; that the

State’s inclusion of a newspaper article in its response to his petition for a writ of

certiorari to the New Mexico Supreme Court contained hearsay in violation of the

Confrontation Clause; and that his counsel was ineffective for two new

reasons—for allegedly lying to Mr. Bahney about the length of the sentence he

would receive if he pled and for failing to conduct an independent crime scene

analysis. R. 252-55.

      The district court overruled Mr. Bahney’s objections, adopted the

magistrate judge’s report, denied the petition and dismissed the case. The court

determined that Mr. Bahney had waived the arguments raised for the first time in

his objections. R. 264-67 (citing United States v. Garfinkle, 261 F.3d 1030, 1031

(10th Cir. 2001)). The district court rejected the remaining claims on the merits,

essentially for the same reasons as the magistrate judge. Id.

      In his request for a COA, Mr. Bahney presents five issues, restating his

objections to the magistrate judge’s report and newly arguing that some evidence

against him was obtained in violation of the Fourth Amendment. Pet. Br. at 3.

To obtain a COA, Mr. Bahney must show that reasonable jurists would find it

debatable whether the district court was correct in its procedural rulings and/or

                                          -3-
whether he stated a valid claim for the denial of a constitutional right. See Slack,

529 U.S. at 484. Mr. Bahney waived his Fourth Amendment claim by not raising

it below; it thus is not a proper basis for a COA. See Parker v. Scott, 394 F.3d

1302, 1307 (10th Cir. 2005). The district court’s determination that the actual

innocence claim, the Confrontation Clause claim, and the new ineffective

assistance arguments were also waived (procedural) is not reasonably debatable

because “theories raised for the first time in objections to the magistrate judge’s

report are deemed waived.” Garfinkle, 261 F.3d at 1031. Mr. Bahney has not

shown that he qualifies for any of the exceptions from this firm waiver rule: that

the court failed to inform him of the time period for objecting and the

consequences of failing to object, that the interests of justice warrant review, or

plain error. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008); Wardell

v. Duncan, 470 F.3d 954, 958 (10th Cir. 2006).

      The resolution by the district court of the issues decided on the merits is

likewise not reasonably debatable. First, Mr. Bahney presented no evidence that

he ever concluded another plea agreement with the prosecution. To his objections

to the magistrate’s report, Mr. Bahney attached a letter from his attorney relaying

a plea offer that would have capped his sentence at twenty-two years, as well as a

drafted plea agreement. R. 257-60. The draft agreement bears only the signature

of Mr. Bahney’s counsel, not the signatures of either the prosecutor or the state

judge. The district court’s conclusion that Mr. Bahney lacks a sufficient factual

                                          -4-
basis for his constitutional claim on this theory is not reasonably debatable. See

United States v. Novosel, 481 F.3d 1288, 1292 (10th Cir. 2007) (citing Mabry v.

Johnson, 467 U.S. 504, 507 (1984)). Second, the district court’s conclusion that

Mr. Bahney has not demonstrated that, but for his counsel’s failure to track down

alibi witnesses and move to suppress certain evidence, “he would not have

pleaded guilty and would have insisted on going to trial” is likewise not

reasonably debatable. Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      We DENY a COA and DISMISS the appeal.

                                       Entered for the Court

                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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