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

                                     TENTH CIRCUIT                            April 4, 2014

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
RAYMOND M. GONZALES,
           Petitioner – Appellant,
v.                                                            No. 13-2215
                                                    (No. 1:11-CV-00686-MCA-SMV)
ERASMO BRAVO; ATTORNEY                                         (D.N.M.)
GENERAL FOR THE STATE OF NEW
MEXICO,
         Respondents – Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.


     Raymond Gonzales, a state prisoner in New Mexico, filed a petition pro se under 28

U.S.C. § 2254 seeking habeas corpus relief. A jury convicted Gonzales on three counts of

distributing methamphetamine, and the state court sentenced him to 12 years’

imprisonment. The district court denied his habeas petition. Now Gonzales seeks a

certificate of appealability (“COA”) from us to undo that decision.1 We may issue a COA

only if the petitioner makes a “substantial showing of the denial of a constitutional right.”

§ 2253(c)(2). To make that showing, a petitioner must demonstrate that reasonable jurists

     *
       This order is not binding precedent except under the doctrines of law of the case,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 Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Court Rule
32.1.
     1
     A COA is a jurisdictional prerequisite to this court’s review of a § 2254 petition. 28
U.S.C. § 2253(c)(1)(A).
could debate whether his petition should have been resolved differently. Miller-El v.

Cockrell, 537 U.S. 322, 336 (2003). Even viewing the pleadings before us generously,

Gonzales does not give us cause to debate the district court’s analysis. Thus, we deny his

request for a COA and dismiss this appeal.


                                   BACKGROUND 2
    The United States Air Force Office of Special Investigations (“OSI”) began an

investigation based on reports that airmen were obtaining narcotics from a local business

called Solar Shield. OSI Agent Jason McMackin used a confidential informant, Airman

Dustin Maples, to buy methamphetamine from Gonzales. Because he had a part-time job

at Solar Shield, Airman Maples was an ideal person to use in the operation. Gonzales’s

uncle, who worked at Solar Shield, arranged the meetings where Maples could buy

methamphetamine from Gonzales. These transactions were monitored by Agent

McMackin and other OSI agents. After these controlled buys, Airman Maples would then

turn over the methamphetamine to Agent McMackin. Terrence Mulligan, a Senior

Investigator with the New Mexico 9th Judicial District Attorney’s Office, assisted Agent

McMackin in preparing a criminal complaint and arrest warrant to initiate proceedings in

the New Mexico court system against Gonzales. But Investigator Mulligan did not testify

at trial. The District Attorney’s case officer at trial was Agent McMackin. A jury found




   2
     The information in this background section is taken from the magistrate judge’s
proposed findings and recommended disposition.

                                             -2-
Gonzales guilty on three drug-trafficking charges. The court sentenced Gonzales as a

habitual offender to 12 years’ imprisonment with three years suspended.

    Before and at the close of the prosecution’s case, Gonzales submitted a motion to

dismiss, alleging a violation of the Posse Comitatus Act (“PCA”). The PCA, a

Reconstruction Era statute, states that “[w]hoever, except in cases and under

circumstances expressly authorized by the Constitution or Act of Congress, willfully uses

any part of the Army or the Air Force as a posse comitatus or otherwise to execute the

laws shall be fined under this title or imprisoned not more than two years, or both.” 18

U.S.C. § 1385. Gonzales argued that the Air Force violated the PCA by investigating him

as a civilian. The trial court denied the motion. Gonzales raised the PCA issue again on

direct appeal, and the New Mexico Court of Appeals affirmed the conviction, after

concluding that the proper remedy for a violation of the PCA did not include suppression

of evidence. The New Mexico Supreme Court denied Gonzales’s petition for writ of

certiorari. He then filed a pro se petition for writ of habeas corpus in state court, which

was denied, as was his subsequent petition for writ of certiorari to the New Mexico

Supreme Court.

    In his § 2254 petition to the federal district court, Gonzales raised five grounds for

relief:

    1. Trial counsel was unconstitutionally ineffective by failing to properly investigate
          Drug Enforcement Administration (“DEA”) agents whose testimony would have
          shown a violation of the Posse Comitatus Act (“PCA”), 18 U.S.C. § 1385.




                                            -3-
   2. The prosecution violated Petitioner’s rights under Brady v. Maryland, 373 U.S. 83
      (1963), by failing to disclose that no officer from the Clovis Police Department
      was involved in the underlying criminal investigation, which would have shown
      that the criminal investigation was carried out in violation of the PCA.

   3. The trial judge was biased against him in violation of his due process rights
      because he denied Petitioner’s motion to dismiss based on violation of the Posse
      Comitatus Act, and then “made attempts to force” Petitioner into a plea deal.
      However, when Petitioner refused the plea deal, the trial judge responded by
      “[feeling] slight disrespect[]” and allegedly denied him a fair trial.

   4. Trial counsel, the trial judge, and the prosecutor acted in concert to prevent
      Petitioner from confronting Air Force personnel in violation of his rights under the
      Confrontation Clause of the United States Constitution.

   5. An Air Force investigator conducted a search without a probable cause
      determination from a neutral magistrate, in violation of Petitioner’s protections
      against unreasonable searches and seizures as guaranteed in the Fourth
      Amendment to the United States Constitution.

    The district court referred the matter to Magistrate Judge Stephan Vidmar, who found

that claims two and three had not been exhausted in state court. Before the district court

adopted that finding, Gonzales filed a motion to amend his § 2254 petition. In effect, the

amended petition omitted claim three and altered claim two so that it directly asserted

that the underlying conviction was obtained in violation of the PCA. On June 3, 2013, the

district court granted Gonzales’s motion to amend his § 2254 petition, and found that, as

amended, claim two had been properly exhausted.




                                            -4-
    Four months later, Magistrate Vidmar issued his report on the remaining claims,

which recommended denying relief on all grounds. As for Gonzales’s claim that his

conviction was obtained in violation of the PCA, Judge Vidmar found that habeas relief

would be inappropriate because the remedy for violations of the PCA is a fine and jail

time, not suppression of the evidence.3 He noted that New Mexico recognizes an

exception under which suppression may be warranted where there are widespread and

repeated violations of the PCA, but he said Gonzales had failed to show that the Supreme

Court had recognized such an exception. Gonzales objected to the magistrate’s report by

arguing that he had shown widespread and repeated violations of the PCA by the Air

Force and by asserting that his attorney was ineffective for failing to raise this issue at

trial. The district court adopted Judge Vidmar’s recommendation over Gonzales’s

objections. In his combined opening brief and application for a COA, Gonzales raises

four issues.

   1. The district court erred in failing to recognize the PCA violations.

   2. The district court erred in failing to grant an evidentiary hearing regarding the
       PCA violations.

   3. The district court erred in forcing Gonzales “to dismiss claims two and three and
       not recognizing the ‘Brady violations.’”




   3
      The Sixth Circuit has noted that “every federal court to have considered the issue
has held that suppression is not an appropriate remedy for a violation of the Act.” Gilbert
v. United States, 165 F.3d 470, 474 n. 2 (6th Cir. 1999) (citing United States v. Al–Talib,
55 F.3d 923, 930 (4th Cir. 1993); Hayes v. Hawes, 921 F.2d 100, 103 (7th Cir. 1990);
United States v. Hartley, 796 F.2d 112, 115 (5th Cir. 1986)).
                                           -5-
   4. The district court erred in denying Gonzales’s ineffective assistance of counsel
       claim. Particularly, Gonzales claims his counsel was ineffective because he did not
       call for a mistrial when the prosecution amended the charges during trial, he did
       not prepare a proper defense based on the PCA violations, and he failed to object
       to the chain of custody of evidence presented at trial.


                                      DISCUSSION
1. The PCA Claim and Evidentiary Hearing
    Gonzales argues that the district court erred in failing to recognize the alleged PCA

violations committed against him. His underlying claim is that New Mexico obtained his

conviction in violation of the PCA because an Air Force investigator conducted a

criminal investigation of a civilian. The district court said that his claim is not cognizable

under § 2254 because the proper remedy violations of the PCA is a fine and jail time, not

suppression of evidence. It acknowledged that New Mexico’s state exclusionary rule

applies when there are widespread and repeated violations of the PCA, but contrasted that

by noting that neither the Tenth Circuit nor the Supreme Court has recognized such a

rule.4 Thus, it concluded that even had the petitioner shown widespread and repeated

violations of the PCA, his claim would still have failed because the district court could

not say that New Mexico’s decision not to apply an exclusionary rule was an

unreasonable application of clearly established federal law.




   4
      See United States v. Hutchings, 127 F.3d 1255, 1259 (10th Cir. 1997) (“[W]e need
not reach the question of whether exclusion of evidence is an appropriate remedy when
federal military personnel collect evidence in violation of the PCA.”).

                                            -6-
    In his request for a COA, Gonzales suggests he has “present[ed] federal violations”

because “any laws pertaining to military conduct would be federal.” Appellant’s

Combined Opening Brief and Application for a Certificate of Appealability 8, Jan 13,

2014, CM/ECF No. 10140243. This does not meaningfully address the district court’s

reasoning, which can only be rebutted by providing Supreme Court or Tenth Circuit

precedent applying the exclusionary rule for violations of the PCA. As Gonzales has

failed to “demonstrate that reasonable jurists could debate” the district court’s decision,

we deny his COA request on this issue.

   Gonzales also claims the district court erred in not granting an evidentiary hearing on

this claim. Because the claim is not cognizable under § 2254, no set of facts would aid

our adjudication, and thus the district court properly denied an evidentiary hearing.

2. The Unexhausted Claims

    Gonzales asserts that the district court erred in forcing him “to dismiss claims two

and three and not recognizing the ‘Brady violations.’” Id. at 9. Magistrate Vidmar found

that claim two, which alleged a Brady violation, and claim three were not exhausted in

state court. Gonzales initially objected to the magistrate’s findings, but then filed a

motion to amend his § 2254 petition. The motion sought to remove claims two and three

from the § 2254 petition. But it also stated that his underlying conviction was obtained as

a result of a violation of the PCA. Finally, the motion requested that “the Brady rule be

applied to claim one.” R. vo1. 1, at 340.

    The district court liberally construed Gonzales’s pro se motion. It allowed him to

remove claim three and it found that, in effect, Gonzales sought to alter claim two so as to
                                            -7-
remove the unexhausted Brady claim and instead directly assert a violation of the PCA.

The court found that, as amended, claim two had been properly exhausted. The court did

not permit Gonzales to graft his Brady claim onto claim one. It said, “[T]he Brady rule

claim is entirely separate and distinct from the ineffective-assistance-of-counsel claim set

forth in the original Claim One, such that the purported amendment would constitute an

improper successive petition.” R. vo1. 1, at 384.

    Under 28 U.S.C. § 2254, a petitioner must exhaust all available avenues of state-

court remedies before a federal court may review those claims on their merits. 28 U.S.C.

§ 2254(b)(1)(A). The magistrate concluded that Gonzales had not argued key portions of

claims two and three in the New Mexico Supreme Court. In particular, he had not alleged

a Brady violation and he had not argued that the state trial court violated his due process

rights. Gonzales gives us no reason to debate this analysis. Thus, we deny his COA

request on this issue.

3. The Ineffective Assistance Claim

   In his § 2254 petition, Gonzales argued that his counsel was ineffective for failing to

investigate DEA agents who would have verified that the PCA had been violated.5 In his

COA request, he attempts to attach a string of other alleged deficiencies. Because we do

not consider issues raised for the first time on appeal, we will only consider the originally


   5
     The district court determined that Gonzales’s “central objection” to the magistrate’s
recommendation was based on the PCA violation. R. vo1. 1, at 495. But we note that
Gonzales did obliquely raise an ineffective assistance claim in his objection. In two
sentences, Gonzales argued that his trial counsel was ineffective for failing to contest the
evidence obtained in violation of the PCA.

                                            -8-
alleged deficiency. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005) (declining to

consider additional ineffective assistance of counsel claims that habeas petitioner did not

present to district court). On that point, we agree with Magistrate Vidmar, who found that,

even assuming deficient performance, Gonzales failed to show prejudice6 because the

exclusionary rule does not apply to violations of the PCA. Thus, we deny Gonzales’s

COA request on this issue.


                                    CONCLUSION
    Based on the foregoing, we deny a certificate of appealability and dismiss this

appeal. Appellant’s motion for appointment of counsel is denied.



                                          ENTERED FOR THE COURT


                                          Gregory A. Phillips
                                          Circuit Judge




   6
      Wiggins v. Smith, 539 U.S. 510, 521 (2003) (a petitioner must show that counsel’s
deficiency “prejudiced the defense”).

                                           -9-
