                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                      May 21, 2008
                     UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                            FOR THE TENTH CIRCUIT


    LEONARDO PIÑON,

                Petitioner-Appellant,

    v.                                                  No. 07-2130
                                               (D.C. No. 06-cv-686-MV-LFG)
    ROBERT ULIBARRI, Warden,                             (D. N.M.)
    Southern New Mexico Correctional
    Facility,

                Respondent-Appellee.


                            ORDER AND JUDGMENT *


Before LUCERO and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.



         Petitioner Leonardo Piñon, a New Mexico inmate, appeals the district

court’s denial of his habeas-corpus application under 28 U.S.C. § 2254. Because

the district court correctly determined that Mr. Piñon failed to demonstrate




*
       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. This order and judgment 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
constitutionally ineffective assistance of counsel in connection with his

drug-trafficking convictions, we affirm.

                                           I.

      In September 2001, an acquaintance of Mr. Piñon, along with two

strangers, came to his home and asked if he would sell them drugs. Initially,

Mr. Piñon refused, but eventually agreed to take the acquaintance (believed to be

a confidential informant) and his companions (undercover police officers) to

another residence where he obtained crack cocaine for them. This scene was

repeated three more times in the following days with varying participants.

Mr. Piñon states he facilitated the drug purchases only to end the operatives’

“persistent requests,” “badger[ing],” and “implied threats” to himself and his

wife. Aplt. Br. at 4-6.

      Two years later, Mr. Piñon was arrested for the four drug offenses.

Mr. Piñon explained his proposed defense to his appointed attorney: he had been

coerced into obtaining drugs for the undercover agents. The attorney, however,

advised Mr. Piñon that his best chance of resolving the pending criminal charges

was by cooperating with law enforcement. According to Mr. Piñon, he and his

attorney met with a prosecutor who told him that the State would reduce the

charges if he produced eight other individuals engaged in drug trafficking.

Mr. Piñon agreed and worked with law enforcement officials, without the

assistance or presence of his attorney. Despite his consistent efforts, Mr. Piñon

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states, he was unable to produce the eight drug dealers. Mr. Piñon therefore

received no concessions. Six months after his arrest, he was arraigned on four

separate counts of distributing cocaine in violation of N.M. Stat. § 30-31-20.

      On the trial date, Mr. Piñon’s counsel submitted two untimely filings:

(1) a motion to dismiss arguing that police misconduct induced Mr. Piñon to

commit the crimes and (2) a motion in limine asking permission to testify about

alleged entrapment without being impeached with his prior felony conviction for

bribery of a public official. In spite of the untimeliness, the trial court considered

both motions on the merits and denied them.

      A jury, including five Hispanic-surnamed jurors, was empaneled without

objection from defense counsel. Although Mr. Piñon’s counsel cross-examined

the prosecution witnesses, he did not present any witnesses for defense. At the

conclusion of a one-day trial, the jury convicted Mr. Piñon. The court later

sentenced him to a ten-year term of imprisonment as an habitual offender with

one prior felony conviction.

      The New Mexico state courts affirmed Mr. Piñon’s conviction on direct

appeal and later denied post-conviction relief. He filed a habeas-corpus

application in federal district court under 28 U.S.C. § 2254, arguing that he

had received constitutionally ineffective assistance of trial counsel. In a

thorough, thirty-one page report, the assigned magistrate judge reviewed

Mr. Piñon’s claims. The magistrate judge found that each of Mr. Piñon’s

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ineffective-assistance claims had been reviewed, addressed, and rejected by the

state courts and concluded that the state habeas dispositions were reasonable and

consistent with federal law. Specifically, the magistrate judge determined that

state courts correctly stated and applied the appropriate federal standards for a

claim of ineffective assistance of counsel expressed in Strickland v. Washington,

466 U.S. 668 (1984). Mr. Piñon had not met the two-pronged showing that

(1) counsel’s performance was constitutionally defective and (2) the deficient

performance prejudiced the defense in that the alleged errors were so serious as to

deprive the defendant of a fair trial with a reliable result. Id. at 689. According

to the magistrate judge, the attorney was available to Mr. Piñon throughout the

case, including the period of cooperation with the prosecution; the defense of

entrapment was adequately investigated and presented; Mr. Piñon was not

prejudiced by the attorney’s failure to pursue pretrial motions; the attorney’s

decision to refrain from objecting to the prosecution’s use of peremptory

challenges was reasonable; Mr. Piñon’s claim that the attorney refused to allow

him to testify was not supported by the record; and there was no cumulative error.

      The magistrate judge, therefore, concluded that there was no ground for

federal habeas relief and recommended that the habeas application be denied and

the case dismissed with prejudice. After conducting a de novo review, the district

court adopted the magistrate judge’s findings and recommended disposition.

Although it dismissed the case, the district court granted a certificate of

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appealability (COA) “on the issues of alleged ineffective assistance of counsel

and abandonment by trial counsel during a critical stage of the proceedings.”

Aplt. App. at 401; see also 28 U.S.C. § 2253(c)(1) (requiring a COA to appeal

denial of habeas application).

                                         II.

      On appeal, Mr. Piñon again raises numerous ineffective-assistance claims,

all of which were decided on the merits by the state courts.

      [A] federal court may not grant habeas relief on a claim adjudicated
      on the merits in state court . . . unless the state court decision was
      contrary to, or involved an unreasonable application of, clearly
      established Federal law, as determined by the Supreme Court or was
      based on an unreasonable determination of the facts in light of the
      evidence presented in the State court proceeding. Moreover, state
      court fact findings are presumed correct unless the petitioner rebuts
      them by clear and convincing evidence.

Allen v. Reed, 427 F.3d 767, 771 (10th Cir. 2005) (citations and quotations

omitted).

      According to the case law, “[d]ecisions contrary to or representing an

unreasonable application of federal law are independent bases for habeas relief.”

Id. (quotations omitted). A decision that is “contrary to clearly established

federal law under § 2254(d)(1)” occurs “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 Supreme Court has on a set of materially

indistinguishable facts.” Id. “A state court decision is an unreasonable


                                         -5-
application of federal law under § 2254(d)(2) if the state court identifies the

correct governing legal principle from the Supreme Court’s decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Id. “[A]n

unreasonable application of federal law is different from an incorrect or erroneous

application of federal law.” Id. (quotations omitted).

      Mr. Piñon claims that counsel was ineffective based on: (1) abandonment

during the period of cooperation with the prosecution; (2) failure to conduct an

adequate pre-trial investigation of his entrapment defense; (3) failure to pursue a

pre-trial motion to dismiss based on the two-year pre-indictment delay; (4) failure

to challenge the prosecutor’s use of peremptory challenges to limit the number

of Hispanic jurors; and (5) failure to present an adequate defense. To the extent

the district court’s COA order is ambiguous, we resolve any ambiguities in

favor of Mr. Piñon and determine that the COA encompasses all of his issues.

Cf. LaFevers v. Gibson, 182 F.3d 705, 711 (10th Cir. 1999) (“Now that the

district court has made appealable all the issues in this case by its blanket order,

we must review the merits of each claim.”).

      We have carefully reviewed the record, the parties’ arguments, and the

applicable law. We conclude that the habeas petition was properly dismissed for

the reasons stated in the magistrate judge’s findings and recommended disposition




                                          -6-
dated December 4, 2006, and the district court’s order dated April 3, 2007.

      The judgment of the district court is AFFIRMED.


                                                   Entered for the Court



                                                   John C. Porfilio
                                                   Circuit Judge




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