                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           November 2, 2005
                                    TENTH CIRCUIT
                                                                             Clerk of Court

 BLAKE SCOTT,

          Petitioner - Appellant,

 v.                                                       No. 04-2262
                                                        (D. New Mexico)
 JOE ROMERO, Warden, Central New                (D.Ct. No. CIV-04-241 MV/RLP)
 Mexico Correctional Facility;
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO,

          Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY
                      AND DISMISSING APPEAL


Before KELLY, O’BRIEN, and TYMKOVICH, 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.

      Petitioner-Appellant Blake Scott, a state prisoner appearing pro se, 1 seeks a



      1
        We construe pro se pleadings liberally. Ledbetter v. City of Topeka, Kan., 318
F.3d 1183, 1187 (10th Cir. 2003).
certificate of appealability (COA) allowing him to appeal the district court's order

denying his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He

also moves to proceed in forma pauperis (ifp) on appeal. Because we conclude

Scott’s claims are procedurally barred and without merit, we deny a COA and

dismiss the appeal.

       The parties are familiar with the facts and we need not restate them here.

On appeal, Scott reasserts three claims he presented in the district court,

specifically 1) he received ineffective assistance of counsel in his state court trial

when counsel failed to object to the admission of a recording of Scott’s telephone

call from the police station; 2) that the prosecution violated Brady v. Maryland,

373 U.S. 83 (1963), by withholding letters he had written to his mother-in-law

and then only placing part of the letters into evidence; and, 3) that his Sixth

Amendment rights were violated when the district court failed to allow him to

present exculpatory evidence. 2 The magistrate judge recommended Scott’s claims

be dismissed because the Brady and Sixth Amendment claims were procedurally

barred and all three claims were without merit. The district court adopted the

magistrate’s recommendations and dismissed Scott’s habeas petition. In addition



       2
         In his petition before this Court, Scott argues he “was denied a fair and impartial
trial.” (COA Petition at 3.) Although he does not articulate the precise basis for this
claim in his COA petition, this is the same language used in his Sixth Amendment claim
before the district court.

                                             -2-
to his three claims, Scott also challenges the district court’s allowance of the

State’s motion to dismiss prior to its filing of an answer to his habeas petition.



                                      Analysis

      Unless this Court issues a COA, Scott may not appeal the dismissal of his §

2254 petition. 28 U.S.C. § 2253(c)(1)(A). “[Section] 2253(c) permits the

issuance of a COA only where a petitioner has made a ‘substantial showing of the

denial of a constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)

(quoting § 2253(c)(2)). To make the requisite 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.” Id. (quotation marks and

citation omitted).

      “When the district court denies a habeas petition on procedural grounds

without reaching the prisoner's underlying constitutional claim, a COA should

issue when the prisoner shows, at least, that jurists of reason would find it

debatable whether the petition states a valid claim of the denial of a constitutional

right and that jurists of reason would find it debatable whether the district court

was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484

(2000). “Where a plain procedural bar is present and the district court is correct


                                          -3-
to invoke it to dispose of the case, a reasonable jurist could not conclude either

that the district court erred in dismissing the petition or that the petitioner should

be allowed to proceed further. In such a circumstance, no appeal would be

warranted.” Id. “[W]hen reviewing the merits of a claim already decided by the

state courts, we are bound to deny relief unless the state court’s decision ‘was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court.’” LaFevers v. Gibson, 182

F.3d 705, 711 (10th Cir. 1999) (quoting 28 U.S.C. § 2254(d)).

      With these principles in mind, we have carefully reviewed the record and

agree with the district court’s conclusions. Scott does not dispute that he failed to

raise either his Brady or Sixth Amendment claims in his direct appeal. Under

New Mexico law, Scott is deemed to have waived these claims by failing to raise

them on direct appeal. Duncan v. Kerby, 115 N.M. 344, 851 P.2d 466, 468

(1993). “On habeas review, this Court will not consider issues that have been

defaulted in state court on an independent and adequate state procedural ground,

unless the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.” Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir.

1998). This Court has previously held that New Mexico’s procedural bar at issue

here is an independent and adequate state procedural ground. Jackson v. Shanks,

143 F.3d 1313, 1318 (10th Cir. 1998) (“Our review of New Mexico cases


                                          -4-
indicates that New Mexico courts have consistently and even handedly applied the

rule waiving issues not raised on direct appeal for purposes of post-conviction

relief.”). Scott has failed to demonstrate cause that would avoid the procedural

bar with respect to his Brady and Sixth Amendment claims. See Coleman v.

Thompson, 501 U.S. 722, 754 (1991) (“the petitioner . . . must bear the burden of

a failure to follow state procedural rules.”).

      In reviewing Scott’s ineffective assistance of trial counsel claim, the Dona

Ana County, New Mexico District Court evaluated whether trial counsel’s failure

to object to the admission of a recording of Scott’s telephone call from the police

station to his mother was ineffective. Although it questioned defense counsel’s

trial strategy, it noted any error was not prejudicial because any objection would

have been futile. Applying New Mexico v. Coyazo, 936 P.2d 882 (N.M. App.

1997), the district court held Scott had no reasonable expectation of privacy in a

phone call made from the police station, especially where his comments indicated

his awareness that the police were listening. This is not an unreasonable

application of federal law. See United States v. Turner, 209 F.3d 1198, 1200-01

(10th Cir. 2000) (no objective expectation of privacy in conversation conducted in

a patrol car). Counsel is not ineffective for failing to advance a futile argument.

See Dever v. Kansas State Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994) (“To

be ineffective, the representation must have been such as to make the trial a


                                          -5-
mockery, sham, or farce, or resulted in the deprivation of constitutional rights.”).

      Finally, Scott’s objection to the district court’s allowance of a motion to

dismiss his habeas petition is based on a misreading of the Rules Governing

Habeas Corpus Cases Under Section 2254. Rule 4 directs the district court judge

to either dismiss the case if the petitioner “plainly is not entitled to relief” or

“order the respondent to file an answer, motion, or other response.” (emphasis

added). Rule 5(a) explains that “[t]he respondent is not required to answer the

petition unless a judge so orders.” The Advisory Committee Notes to the 2004

Amendments state that the revised Rule 5 “does not address the practice in some

districts, where the respondent files a pre-answer motion to dismiss the petition.

But revised Rule 4 permits that practice and reflects the view that if the court

does not dismiss the petition, it may require (or permit) the respondent to file a

motion.” (emphasis added). The rules do not prohibit the State from filing a

motion to dismiss prior to filing an answer and the Advisory Committee Notes

specifically recognize the district court’s discretion to allow the filing of such

motion in lieu of an answer. His claim of judicial misconduct is without merit.

      Because Scott’s petition is wholly without merit, he has failed to show the

existence of a reasoned, nonfrivolous argument on the law and facts in support of

the issues he raises on appeal. Accordingly, we deny his request to proceed ifp on

appeal.


                                           -6-
                                    Conclusion

      Based on the above, we DENY Scott’s request for a COA and DISMISS

the appeal. We also DENY his motion for leave to proceed ifp on appeal. Scott

shall remit the full amount of the filing fee within twenty (20) days of the date of

this order.



                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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