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

                                    TENTH CIRCUIT                     October 27, 2010

                                                                    Elisabeth A. Shumaker
                                                                        Clerk of Court

 DIMAS MEDINA,

           Petitioner–Appellant,

 v.                                                           No. 10-2148
                                                  (D.C. No. 1:09-CV-00492-BB-WPL)
 TIMOTHY HATCH, Warden; GARY K.                                (D. N.M.)
 KING, Attorney General for the State of
 New Mexico,

           Respondents–Appellees.




               ORDER DENYING CERTIFICATE OF APPEALABILITY*


Before KELLY, EBEL, and LUCERO, Circuit Judges.



       Dimas Medina a/k/a Dimas Aguilar a/k/a Dimas Reyes, a state prisoner

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

court’s dismissal of his 28 U.S.C. § 2254 habeas petition. We deny a COA and dismiss

the appeal.


       *
         This order is not binding precedent except under the doctrines of law of the case,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.
                                            I

      In 2006, Medina was charged in a multi-count indictment with kidnapping, and

both physical and sexual assault of his estranged wife. At trial, Medina attempted to

introduce DNA evidence suggesting that his wife had recent sexual contact with another

male, but the trial court determined that the evidence was inadmissible under New

Mexico’s rape shield statute. Medina also sought to introduce favorable testimony from

his brother, Ernesto Medina. The court did not allow Ernesto Medina to testify, on the

grounds that he was a courtroom spectator and that he had not previously been identified

to the State as a potential witness. Medina was convicted by a jury of felony counts of

kidnapping, criminal sexual penetration, and aggravated assault on a family member and

on several misdemeanor counts.

      Medina appealed, challenging the sufficiency of the evidence supporting his

conviction. He also (somewhat obliquely) challenged the trial court’s exclusion of the

DNA evidence and of his brother’s testimony, contending that these exclusions violated

his rights under the Sixth and Fourteenth Amendments to present a defense. The court of

appeals affirmed the conviction. Medina filed a certiorari petition in the New Mexico

Supreme Court, on the same grounds, which was denied.

      Medina then filed a pro se petition for a writ of habeas corpus in New Mexico

state court. His habeas petition reiterated the DNA and sufficiency of the evidence


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arguments, and also claimed ineffective assistance of counsel. The court summarily

dismissed Medina’s petition.

       On May 18, 2009, Medina filed a pro se petition for a writ of habeas corpus in the

United States District Court for the District of New Mexico. He raised six claims for

relief: (1) ineffective assistance of counsel; (2) denial of due process because his brother

was not allowed to testify; (3) failure of the prosecution to disclose favorable DNA

evidence; (4) use of evidence obtained pursuant to an unlawful arrest in violation of the

Fourth Amendment; (5) use of coerced testimony from the victim; and (6) imposition of

cruel and unusual punishment in violation of the Eighth Amendment. A federal

magistrate judge recommended that Medina’s petition be denied. The recommendation

stated that Medina defaulted on his ineffective of assistance of counsel claim and

exclusion of testimony claims, and rejected the remaining claims on the merits. The

district court adopted the magistrate’s findings and disposition. Medina filed a timely

application for a COA with this court.

                                              II

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

COA. 28 U.S.C. § 2253(c)(1)(A). Because the district court dismissed parts of Medina’s

petition on a procedural ground, Medina may not obtain a COA unless he demonstrates

“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


                                             -3-
whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

U.S. 473, 484 (2000). We liberally construe Medina’s application for a COA because he

proceeds pro se. See Haines v. Kerner, 404 U.S. 519, 520 (1972).

       In his filings with this court, Medina identifies five issues to be raised on appeal,

but argues only three of them: (1) his procedural default should be excused; (2) the

exclusion of favorable witness testimony violated his right to due process; and (3) the

exclusion of DNA evidence recovered from the victim violated his rights under the

Confrontation Clause.

                                                A

       A state prisoner’s procedural default may be excused to permit federal review of

otherwise barred habeas claims if the prisoner can demonstrate: (1) “cause for the

default”—which we have defined as “some objective factor external to the defense”; and

(2) “actual prejudice as a result of the alleged violation of federal law, or . . . that failure

to consider the claims will result in a fundamental miscarriage of justice.” Dulin v. Cook,

957 F.2d 758, 760 (10th Cir. 1992) (quoting McClesky v. Zant, 499 U.S. 467, 493

(1991)).

       Medina argues that he lacked knowledge of New Mexico’s procedural rules

because he is not a native English speaker and had no access to an interpreter, thus,

causing his procedural default. But whatever his language skills may be, they have not

prevented him from filing a number pro se petitions in English. Medina either has a


                                              -4-
sufficient working knowledge of English or sufficient access to English speakers to

enable him to pursue this action in the courts. Consequently, he cannot establish that

language barriers have deprived him of “reasonable access to the rules.” Dulin, 957 F.2d

at 760.

          Medina also claims his lack of knowledge of the New Mexico Supreme Court’s

filing rules constitutes adequate cause. But to prevail on such a claim, lack of

knowledge “must be due to a lack of reasonable access to the rules as distinguished from

basic ignorance of the rules or the law.” Id. Medina has not established a lack of

reasonable access. The fact that Medina may have to share the prison’s copy of these

rules with, by his own estimate, sixty other inmates does not deny him reasonable access

to these rules. Moreover, Medina was specifically informed of the deadline for

petitioning the New Mexico Supreme Court in the order denying his state habeas claims.

Finally, and contrary to Medina’s contention, Lewis v. Casey, 518 U.S. 343 (1996), does

not require that he have access to a law library. Given that Medina was provided with the

relevant procedural rule by the state district court’s order and had access to the rule in

prison, he cannot demonstrate that the prison’s lack of a law library deprived him of the

requisite knowledge.

          Medina’s final cause argument also fails. He contends that his failure to exhaust

state remedies is excused due to the futility of recourse to state courts. But the mere fact

that the New Mexico Supreme Court grants a low proportion of petitions for writ of


                                              -5-
certiorari does not in itself reflect futility. Rather, Medina’s long odds of success before

the New Mexico Supreme Court constitute perceived futility, which “alone cannot

constitute cause.” Engle v. Isaac, 456 U.S. 107, 130 n.36 (1991).

       Because Medina has not shown adequate exogenous cause for his default, we do

not reach the prejudice element of the McClesky test. As a consequence, Medina’s

underlying claim regarding the exclusion of his brother’s testimony is barred from federal

habeas review.

                                              B

       Medina also argues on appeal that the trial court violated his right under the Sixth

Amendment’s Confrontation Clause by excluding evidence of a second man’s DNA

recovered from the victim’s cervix. Medina exhausted his state court remedies on this

claim, thus, we consider it on the merits.

       In § 2254 proceedings a district court may only grant habeas relief if a state

court’s decision “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States,” or

“was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

       The Supreme Court has acknowledged that rape shield laws may implicate the

Sixth Amendment because, “[t]o the extent that [they] operate[] to prevent a criminal

defendant from presenting relevant evidence, the defendant’s ability to confront adverse


                                             -6-
witnesses and present a defense is diminished.” Michigan v. Lucas, 500 U.S. 145, 149

(1991). However, such diminution “does not necessarily render that statute

unconstitutional.” Id. Instead, “trial judges retain wide latitude to limit reasonably a

criminal defendant’s right to cross-examine a witness based on concerns about, among

other things, harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.” Id.

       Medina sought to introduce the DNA evidence at trial for two reasons: (1) to

undermine the victim’s credibility as a witness and (2) to cast the DNA identification of

Medina into doubt by creating the possibility of laboratory contamination. With respect

to the first argument, the trial court held that because the DNA evidence challenged the

victim’s credibility—and not Medina’s guilt—it was too collateral to be admissible under

New Mexico’s rape shield law. The trial court also rejected the second argument based

on the rape shield statute. Given the wide latitude afforded trial judges by Lucas, no

reasonable jurist would find it debatable whether the decision of the New Mexico district

court was contrary to or involved an unreasonable application of clearly established

federal law.1




       1
        Medina also cites N.M. Stat. Ann. § 31-1A-2, but that statute is irrelevant
because he does not claim that DNA evidence would prove his innocence.


                                            -7-
                                     III

     For the foregoing reasons, we DENY a COA and DISMISS the appeal. All

pending motions are DENIED.



                                   Entered for the Court,


                                   Carlos F. Lucero
                                   Circuit Judge




                                     -8-
