                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                      April 13, 2007
                                   TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                       Clerk of Court


 TIM O TH EO U S TH O MPSO N ,

                 Petitioner-A ppellant,                 No. 06-2240
          v.                                       District of New M exico
 JAM ES JANECKA, W arden;                    (D.C. No. CIV-05-1121 BB/W PL)
 A TTO RN EY G EN ER AL O F THE
 STA TE OF N EW M EX IC O,

                 Respondents-Appellees.



               OR DER DENY ING CERTIFICATE O F APPEALABILITY *


Before BR ISC OE, EBEL, and M cCO NNELL, Circuit Judges.


      Timotheous Thompson, a state prisoner proceeding pro se, seeks a

certificate of appealability (COA) that would allow him to appeal from the district

court’s order denying his habeas corpus petition under 28 U.S.C. § 2254. See 28

U.S.C. § 2253(c)(1)(A). Because w e conclude that M r. Thompson has failed to

make “a substantial showing of the denial of a constitutional right,” w e deny his

request for a COA, and dismiss the appeal. 28 U.S.C. § 2253(c)(2).




      *
       This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel.
      A jury convicted M r. Thompson in N ovember 2002 of aggravated burglary

and breaking and entering. He was sentenced thereafter to thirteen years in

prison, followed by two years parole. A fter unsuccessfully challenging his

conviction on direct appeal, M r. Thompson sought state habeas corpus relief. H e

was denied. As a last resort, M r. Thompson filed a 28 U.S.C. § 2254 pro se

application for a writ of habeas corpus before the District Court for the District of

New M exico. That court denied his application and his request for a certificate of

appealability.

      The denial of a motion for relief under 28 U.S.C. § 2254 may be appealed

only if the district court or this Court first issues a COA. 28 U.S.C. §

2253(c)(1)(A). A COA is appropriate “only if the applicant has made a

substantial showing of the denial of a constitutional right.” 28 U.S.C. §

2253(c)(2). In order to make such a 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.” Slack v. M cDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). This case leaves no room for

reasonable debate.

      M r. Thompson offers four arguments as to why he should be allowed to

proceed with his habeas appeal. He contends that the district court denied him “a

fair and impartial trial” by refusing to admit certain pieces of evidence M r.

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Thompson considers exculpatory. He claims he suffered from ineffective

assistance of counsel. He accuses the government of prosecutorial misconduct for

facilitating witness perjury, and he argues that the eleven-member jury which

convicted him was unconstitutional. None of these contentions suffices to

demonstrate the denial of a constitutional right.

      M r. Thompson argues first that the district court’s refusal to admit evidence

establishing a domestic relationship between himself and Tonya Ligon, the

woman whose house he illegally entered, eviscerated his defense and effectively

denied him due process of law. The district court characterized this argument as

a challenge to the sufficiency of the evidence. Perhaps that is an accurate

construal of M r. Thompson’s petition to the district court, but M r. Thompson has

not made a sufficiency argument to this Court. Instead, he has squarely

challenged the trial court’s evidentiary rulings. He did not, however, challenge

those rulings on direct appeal. As a result, the New M exico Court of Appeals

rejected this argument when M r. Thompson raised it in his state habeas petition,

noting that New M exico state law bars post-conviction relief on grounds available

but not raised during direct appeal. State v. Beachum, 494 P.2d 188, 189 (N .M .

Ct. A pp. 1972).

      W e reject it as well. W hen a state prisoner has defaulted his federal claims

in state court “pursuant to an independent and adequate state procedural rule,”

federal habeas review is barred, unless the petitioner “can demonstrate cause for

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the default and actual prejudice as a result.” Coleman v. Thom pson, 501 U.S.

722, 750 (1991). M r. Thompson has demonstrated neither cause nor actual

prejudice. His evidentiary challenge is therefore defaulted and beyond our

purview.

      Next, M r. Thompson claims that he suffered ineffective assistance of

counsel. To establish ineffectiveness, M r. Thompson must show that his

counsel’s performance fell below an objective standard of reasonableness and

that, but for his counsel’s deficient performance, the outcome at trial would likely

have been different. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). M r.

Thompson makes neither showing. His primary complaint is that his attorney

failed to call witnesses w ho could have testified to his ongoing domestic

relationship with M s. Ligon. But a personal relationship with the victim is no

defense to the crime of burglary or breaking and entering. N.M . Stat. Ann. §§ 30-

14-8, 30-16-4 (1978). M r. Thompson’s counsel was not ineffective for refusing

to mount a wholly irrelevant defense.

      W hereas M r. Thompson argued to the district court that the government

failed to disclose potentially exculpatory evidence, he now argues in his third

claim to this Court that the prosecution “knowingly permitted perjuried [sic]

testimony from [the] victim of [the] crime,” that is, M s. Ligon. App. Br. at 2.

This is a new argument not raised below. As we have said time and again, we

will not consider claims waived or abandoned in the district court. Leprino Foods

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Co. v. Factory M ut. Ins. Co., 453 F.3d 1281, 1285 n.1 (10th Cir. 2006). An

appeal is not the proper venue for rehearsing new theories.

      Finally, we reject M r. Thompson’s contention that conviction by an eleven-

member jury violated his due process rights. The U.S. Constitution affords

defendants no right to a twelve-person jury. Burch v. Louisiana, 441 U.S. 130,

137 (1979). New M exico, on the other hand, apparently does guarantee its

defendants twelve-member juries, but the right can be waived. State v. M cFall,

354 P.2d 547, 548 (N.M . 1960); see State v. M arrujo, 443 P.2d 856, 857 (N .M .

1968) (trial by jury may be waived). Here again, the New M exico Court of

Appeals ruled that M r. Thompson had abandoned this objection by failing to

lodge it at trial or on direct appeal. The failure to raise an issue on direct appeal

constitutes an independent and adequate state procedural ground that generally

precludes this Court from revisiting the issue. Jackson v. Shanks, 143 F.3d 1313,

1318 (10th Cir. 1998).

      Accordingly, we D EN Y M r. Thompson’s request for a COA and DISM ISS

this appeal.



                                                      Entered for the Court,

                                                      M ichael W . M cConnell
                                                      Circuit Judge




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