                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                August 12, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                 Clerk of Court
                               TENTH CIRCUIT



 ROBERT TRUJILLO YOUNG,

             Petitioner - Appellant,
                                                       No. 13-2067
 v.                                        (D.C. No. 1:11-CV-01139-MV-LAM)
                                                     (D. New Mexico)
 ATTORNEY GENERAL FOR THE
 STATE OF NEW MEXICO; JAMES
 LOPEZ, Warden,

             Respondents - Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Applicant Robert Trujillo Young was convicted in New Mexico state court

of eight crimes, including one count of first-degree felony murder and two counts

of conspiracy to commit murder, and was sentenced to imprisonment for life plus

24 years. He applied for federal habeas relief under 28 U.S.C. § 2254 in the

United States District Court for the District of New Mexico, and that court denied

his application. He now seeks a certificate of appealability (COA) to allow him

to challenge that denial. See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to appeal

denial of § 2254 relief). We deny the application for COA and dismiss the

appeal.
      Applicant’s offenses were committed while he was incarcerated at the

Guadalupe County Correctional Facility in Santa Rosa, New Mexico, in August

1999. Applicant, as a leader of the Los Carnales prison gang, ordered an attack

on Adrian Mares, a fellow inmate who survived the attack, and personally led

gang members in an attack on correctional officer Ralph Garcia, inflicting

multiple stab wounds causing death. He was indicted in May 2000 for first-

degree murder and other crimes related to these attacks. The jury returned guilty

verdicts and the New Mexico Supreme Court affirmed. Applicant sought

postconviction relief in state district court, but his petition was denied and the

state supreme court denied review. In December 2011 Applicant filed the present

§ 2254 application.

      Before turning to Applicant’s request for a COA, we address a preliminary

matter. On April 23, 2013, we issued an order to show cause why he had not

waived appellate review of all his claims by failing to object to the magistrate

judge’s Proposed Findings and Recommended Disposition. See Moore v. United

States, 950 F.2d 656, 659 (10th Cir. 1991) (“[W]e have adopted a firm waiver

rule when a party fails to object to the findings and recommendations of the

magistrate.”). He responds that he did not receive notice of the magistrate

judge’s actions until after the time to object had expired. We need not decide

whether this response is adequate because, as we proceed to explain, none of his

claims is entitled to a COA anyway.

                                         -2-
      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) 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. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

provides that when a claim has been adjudicated on the merits in a state court, a

federal court can grant habeas relief only if the applicant establishes that the

state-court decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1). As we have explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the Court has on a set of materially indistinguishable facts.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal

quotation marks omitted). Relief is provided under the “unreasonable

application” clause “only if the state court identifies the correct governing legal


                                          -3-
principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. (brackets and internal quotation

marks omitted). Thus, a federal court may not issue a habeas writ simply because

it concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. See id. Rather,

that application must have been unreasonable. Therefore, for those of Applicant’s

claims that the New Mexico courts adjudicated on the merits, “AEDPA’s

deferential treatment of state court decisions must be incorporated into our

consideration of [his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938

(10th Cir. 2004).

      Applicant raises in this court the same six issues he raised in his § 2254

application. (For convenience, we combine what he numbers as his fourth, fifth,

and seventh issues.)

      First, Applicant claims that his Sixth Amendment speedy-trial right was

violated by the 102-month delay between his indictment and trial. The New

Mexico Supreme Court adjudicated this claim on the merits, applying the four-

part test of Barker v. Wingo, 407 U.S. 514 (1972). See id. at 530 (considering

“[l]ength of delay, the reason for the delay, the defendant’s assertion of his right,

and prejudice to the defendant”). It held that the length of delay weighed in

Applicant’s favor, but that most of the delay was attributable to Applicant’s

interlocutory appeals, that Applicant failed to assert his right to a speedy trial

                                          -4-
until about eight years after his indictment, and that Applicant had not shown

prejudice. We agree with the district court that the state court’s balancing of the

Barker factors was consistent with clearly established Supreme Court precedent.

      Applicant’s second claim is that trial evidence of his gang affiliation was so

improperly prejudicial as to render his trial fundamentally unfair. The New

Mexico Supreme Court analyzed this claim under state evidentiary rules and

rejected it. “[E]videntiary objections . . . are cognizable on habeas only if the

alleged error was so grossly prejudicial that it fatally infected the trial and denied

the fundamental fairness that is the essence of due process.” Revilla v. Gibson,

283 F.3d 1203, 1212 (10th Cir. 2002) (brackets and internal quotation marks

omitted). The district court was clearly correct in deciding that the evidence did

not create fundamental unfairness.

      Applicant’s third claim is that the trial court refused to give his proffered

jury instruction on causation and gave ambiguous and confusing instructions on

first-degree murder. “Unless the constitution mandates a jury instruction be

given, a habeas petitioner must show that, in the context of the entire trial, the

error in the instruction was so fundamentally unfair as to deny the petitioner due

process.” Tiger v. Workman, 445 F.3d 1265, 1267 (10th Cir. 2006). The New

Mexico Supreme Court held that Applicant’s requested causation instruction was

unnecessary and that the challenged instructions could not have prejudiced

Applicant. These conclusions were not contrary to or an unreasonable application

                                          -5-
of any Supreme Court precedent, and the district court’s conclusion that

Applicant failed to show that his trial was rendered fundamentally unfair by these

alleged instructional errors is not subject to reasonable debate.

      Next, Applicant claims that his trial counsel was constitutionally

ineffective under the Sixth Amendment. He organizes his complaints about his

attorney’s performance in three categories: (1) his attorney failed to call expert

witnesses at trial to rebut the testimony of state experts; (2) he failed to call

Applicant as a witness in his own defense; and (3) he effectively conceded

Applicant’s guilt by (a) failing to call certain unnamed inmate witnesses, (b)

failing to obtain fingerprint and DNA testing on some of the physical evidence

introduced at trial, (c) failing to lodge certain unspecified objections, and (d)

failing to cross-examine government witnesses on unspecified points. He also

points to his attorney’s statements in pretrial proceedings that inadequate

compensation was imperiling his ability to conduct a vigorous defense. To

establish ineffective assistance, Applicant must satisfy the two-prong test of

Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of both (1)

deficient performance by counsel falling “below an objective standard of

reasonableness,” id. at 688, and (2) prejudice to Applicant’s case from the

deficient performance sufficient to raise “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694.

                                           -6-
      Applicant has failed to demonstrate prejudice. Although he argues that

counsel was obliged to call experts and other witnesses, he does not show what

they would have said that would have been helpful to his defense. See Boyle v.

McKune, 544 F.3d 1132, 1138 (10th Cir. 2008) (prejudice not shown from

counsel’s failure to call witnesses where applicant could not show what helpful

testimony the witnesses would have provided). As to his complaint about

counsel’s failure to call him as a witness in his own defense, Applicant states

merely that counsel failed “to ask him if he was willing to defend himself on the

stand,” Aplt. Br. at 13, and does not allege that he was unaware of or was

prevented from exercising his right to testify in his own defense. Cf. Cannon v.

Mullin, 383 F.3d 1152, 1171 (10th Cir. 2004) (thwarting of client’s right to testify

is “a dereliction of duty [that] would satisfy the first prong of Strickland”). And

he fails to explain how it would have been to his advantage to testify. See id.

(“[P]rejudice . . . is established if there is a reasonable probability that

defendant’s testimony would have raised in a juror’s mind a reasonable doubt

concerning his guilt.”). Similarly, we must reject his remaining ineffective-

assistance claims because he has not shown how the results of scientific tests

would have aided his defense, what would have been accomplished by additional

objections or cross-examination, or what helpful evidence would have been

obtained if counsel had more money or resources. Reasonable jurists would not

debate the district court’s disposition of these claims.

                                           -7-
         Applicant’s sixth claim is that he was denied effective assistance of counsel

because his counsel had a conflict of interest. He alleges that correctional

authorities informed the trial judge and prosecutor in 2008 that they had

confiscated a shank that they believed Applicant intended to use to attack his

lawyer, and that the trial judge informed Applicant’s lawyer. But he cites no

evidence substantiating that the 2008 incident occurred. And in any event,

Applicant points to nothing in the record showing that his defense was negatively

affected by this incident. See Mickens v. Taylor, 535 U.S. 162, 174 (2002).

Reasonable jurists would not debate the district court’s rejection of this

ineffective-assistance claim.

         Applicant’s final claim is that his appellate counsel was ineffective for

failing to argue the same alleged deficiencies in his trial counsel’s performance

that we have just discussed. But because none of the underlying claims have

merit, Applicant clearly fails to show that his appellate lawyer was ineffective for

failing to raise them. See Smith v. Workman, 550 F.3d 1258, 1268–69 (10th Cir.

2008).

         We note that Applicant argues that he was entitled to an evidentiary hearing

in district court to develop facts relating to all his claims. But he failed to request

an evidentiary hearing in district court, and we decline to grant him relief that he

seeks for the first time on appeal. See Davis v. Workman, 695 F.3d 1060, 1077

(10th Cir. 2012).

                                            -8-
     We DENY Applicant’s motion for COA and DISMISS his appeal. We

GRANT his motion to proceed in forma pauperis.



                                   ENTERED FOR THE COURT


                                   Harris L Hartz
                                   Circuit Judge




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