 1


 2       IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

 3 Opinion Number:

 4 Filing Date: November 29, 2018


 5 NO. S-1-SC-35491

 6 DAVID R. LUKENS, JR.,

 7        Petitioner,

 8 v.

 9 GERMAN FRANCO, Warden,

10        Respondent.

11 ORIGINAL PROCEEDING ON CERTIORARI
12 Cristina Jaramillo, District Judge


13 Law Offices of Jennifer J. Wernersbach, P.C.
14 Jennifer J. Wernersbach
15 Albuquerque, NM

16 for Petitioner


17 Hector H. Balderas, Attorney General
18 Laurie Pollard Blevins, Assistant Attorney General
19 Santa Fe, NM

20 for Respondent
 1                                        OPINION

 2 CLINGMAN, Justice.

 3   {1}   In this appeal of the district court’s denial of habeas corpus, Petitioner David

 4 Lukens, Jr. claims ineffective assistance of appellate counsel in his direct appeal and

 5 requests a new appeal or reversal of his conviction. We consider (1) whether

 6 prejudice due to deficient performance of Petitioner’s attorney should be presumed

 7 or whether Petitioner must prove that actual prejudice occurred on direct appeal and,

 8 (2) if there was prejudice, whether the remedy should be a new appeal. Although the

 9 performance of Petitioner’s appellate counsel on direct appeal (Appellate Counsel)

10 was clearly deficient in certain instances, we hold that prejudice may not be presumed

11 because the performance of Appellate Counsel did not deprive Petitioner of his

12 constitutional right to a direct appeal of his conviction. We further hold that Petitioner

13 has failed to establish actual prejudice in his direct appeal. Because Petitioner did not

14 establish prejudice, we do not reach the question of remedy. We affirm the district

15 court’s denial of the petition for a writ of habeas corpus.

16   {2}   We pause to address deficient briefing that is too often submitted to this court

17 and to other courts throughout New Mexico. We observe a degree of irony in this

18 case because the very briefs in this habeas appeal alleging deficient performance were

19 neither examples of good structure nor models of clarity. Although we have
 1 determined that Petitioner did not suffer a constitutional deprivation due to

 2 ineffective assistance of counsel, we are concerned about performance issues in

 3 general and about the performance of Appellate Counsel in this case in particular. No

 4 appellate court or district court should ever hesitate to return briefing or order

 5 rebriefing with a short deadline when briefing is unclear or lacks citations or is

 6 otherwise unprofessional. “[A]n order to rebrief provides a reasonable means for

 7 imposing a minimal level of quality control on the appellate briefing process.”

 8 Douglas E. Cressler, Mandated Rebriefing: A Judicial Mechanism for Enforcing

 9 Quality Control in Criminal Appeals, 44-JUL Res Gestae 20, 20.

10   {3}   The New Mexico Rules of Appellate Procedure authorize our appellate courts

11 to impose appropriate sanctions.

12                For any failure to comply with these rules or any order of the
13         court, the appellate court may, on motion by appellant or appellee or on
14         its own initiative, take such action as it deems appropriate in addition to
15         that set out [herein], including but not limited to citation of counsel or
16         a party for contempt, refusal to consider the offending party’s
17         contentions, assessment of fines, costs or attorney fees or, in extreme
18         cases, dismissal or affirmance.

19 Rule 12-312(D) NMRA.

20   {4}   The New Mexico “Rules of Professional Conduct . . . presuppose a larger legal

21 context shaping the lawyer’s role. That context includes court rules and statutes



                                               2
 1 relating to matters of licensure [and] laws defining specific obligations of lawyers”

 2 where “[f]ailure to comply with an obligation or prohibition imposed by a rule is a

 3 basis for invoking the disciplinary process.” Rule 16-Preamble—Scope NMRA.

 4   {5}   This Court has stated,

 5         We remind counsel that we are not required to do their research, and that
 6         this Court will not review issues raised in appellate briefs that are
 7         unsupported by cited authority. When a criminal conviction is being
 8         challenged, counsel should properly present this court with the issues,
 9         arguments, and proper authority. Mere reference in a conclusory
10         statement will not suffice and is in violation of our rules of appellate
11         procedure.

12 State v. Clifford, 1994-NMSC-048, ¶ 19, 117 N.M. 508, 873 P.2d 254 (citations

13 omitted).

14   {6}   We are not alone in our concern. A law review article authored by the

15 Administrator of the Indiana Supreme Court discusses that court’s experience with

16 deficient briefing in criminal appeals. Cressler, supra, at 20 & n.a1. The article

17 describes the briefing in a case, similar to the case before us, where the Indiana

18 Supreme Court required appointment of new counsel for a criminal appellant:

19         Throughout the argument section of the appellant’s brief, factual
20         assertions were made without reference to the record. Contentions of
21         legal error were made without cogent analysis and without sufficient
22         explanation of how the alleged errors were preserved for appellate
23         review. The Court also found the arguments of counsel to be
24         unreasonably difficult to follow. Grammatical errors littered the brief.


                                              3
 1         The Court ultimately concluded that, taken as a whole, the brief was
 2         inadequate.

 3 Id. at 21 & ns.19-20 (citing Perez v. State, Cause No. 12S00-9910-CR-633, appeal

 4 to the Indiana Supreme Court pending as of the publication of this July 2000 law

 5 review) (reporting that in April 2000 the Perez Court struck the appellate brief and

 6 remanded the cause for appointment of new counsel and rebriefing); see also Perez

 7 v. State, 748 N.E. 2d 853 (Ind. 2001) (reviewing the convictions on direct appeal).

 8   {7}   Courts are not required to try and make sense of work product so flawed that

 9 its meaning cannot be discerned. We remind our courts and the New Mexico bar that

10 the New Mexico Rules of Appellate Procedure and Rules of Professional Conduct

11 empower courts to sanction lawyers, including by return of briefs and reassignment

12 of counsel for “failure to comply with an obligation or prohibition imposed by a rule.”

13 I.      BACKGROUND

14   {8}   Petitioner is the father of a child who was born prematurely and injured during

15 his first months of life (Child). On December 5, 2005, a hospital alerted law

16 enforcement when x-rays revealed multiple fractures throughout Child’s body. A

17 grand jury indicted Petitioner for intentional child abuse resulting in great bodily

18 harm in violation of NMSA 1978, Section 30-6-1 (2005). After a two-week trial, the

19 jury convicted Petitioner of first-degree negligent child abuse by endangerment,

                                              4
 1 resulting in great bodily harm. The district court sentenced Petitioner to eighteen

 2 years in prison but reduced his sentence to twelve years upon finding mitigating

 3 circumstances. Petitioner filed a notice of appeal.

 4   {9}    Appellate Counsel Trace Rabern filed a docketing statement with the New

 5 Mexico Court of Appeals but failed to ensure timely filing of the record proper with

 6 the Court of Appeals. The Court of Appeals allowed the late filing of the record

 7 proper and eventually affirmed the conviction. State v. Lukens, A-1-CA-30819, mem.

 8 op. ¶ 22 (July 1, 2013) (nonprecedential). Throughout its opinion, the Court of

 9 Appeals noted that Appellate Counsel failed to develop arguments, failed to cite the

10 record, failed to cite authorities, and did not provide a basis for relief. Id. ¶¶ 6, 9, 10,

11 14, 17, 19-21. Due to these failures, the Court of Appeals did not directly address

12 some issues that Appellate Counsel raised. See id. ¶¶ 6, 9, 14, 17, 19-21.

13   {10}   After losing on direct appeal, Appellate Counsel filed an untimely petition for

14 writ of certiorari in this Court and moved for consideration of the petition as timely.

15 We denied the motion. Appellate Counsel failed to communicate with Petitioner

16 regarding the status of his appeal, and consequently Petitioner did not learn that he

17 was to be remanded to prison until the day before his sentence was to begin.

18   {11}   Petitioner then filed a pro se petition for a writ of habeas corpus under Rule 5-



                                                5
 1 802 NMRA (2009). The district court summarily dismissed the petition. After

 2 consultation between the district attorney’s office and the public defender’s office,

 3 the district court reinstated the petition and appointed new counsel (Habeas Counsel)

 4 for Petitioner.

 5   {12}   Habeas Counsel filed an amended petition for writ of habeas corpus on behalf

 6 of Petitioner, primarily alleging ineffective assistance of appellate counsel. Habeas

 7 Counsel informed the district court that Appellate Counsel had been indefinitely

 8 suspended from the practice of law. The district court denied the amended petition,

 9 finding that Petitioner “failed to demonstrate adequate prejudice to demonstrate the

10 results would have been different but for the errors of his appellate counsel.”

11 Petitioner now seeks this Court’s review of the district court’s denial of habeas

12 corpus.

13   {13}   We granted certiorari under Rule 12-501 NMRA (2014) and ordered the parties

14 to brief Petitioner’s ineffective assistance of counsel issues, particularly (1) “whether

15 the standard for ineffective assistance of counsel always requires prejudice” and (2)

16 “if there was ineffective assistance of counsel, whether the case should be remanded

17 to the New Mexico Court of Appeals for a new appeal.”

18 II.      DISCUSSION



                                               6
 1   {14}   Petitioner alleges that the assistance of Appellate Counsel was so deficient that

 2 prejudice should be presumed and that we should grant him a new appeal.

 3 Alternatively, Petitioner argues that he suffered actual prejudice and that had it not

 4 been for such deficient appellate representation, his conviction would have been

 5 reversed and should be reversed now. The State argues that prejudice should not be

 6 presumed and that Petitioner did not suffer actual prejudice.

 7   {15}   We review findings of fact concerning habeas petitions to determine whether

 8 substantial evidence supports the district court’s findings. Duncan v. Kerby, 1993-

 9 NMSC-011, ¶ 7, 115 N.M. 344, 851 P.2d 466. Substantial evidence “is evidence that

10 a reasonable mind would regard as adequate to support a conclusion.” Fitzhugh v.

11 N.M. Dep’t of Labor, Emp’t Sec. Div., 1996-NMSC-044, ¶ 24, 122 N.M. 173, 922

12 P.2d 555. We review questions of law or questions of mixed fact and law, including

13 the assessment of effective assistance of counsel, de novo. Duncan, 1993-NMSC-011,

14 ¶ 7; see also Strickland v. Washington, 466 U.S. 668, 698 (1984) (“[B]oth the

15 performance and prejudice components of the ineffectiveness inquiry are mixed

16 questions of law and fact.”).

17 A.       Right to Effective Assistance of Appellate Counsel in New Mexico

18   {16}   New Mexico recognizes “that both the Federal Constitution and Article II,



                                                7
 1 Section 14 of the New Mexico Constitution provide a right to the assistance of

 2 counsel both at trial and on appeal.” State v. Vigil, 2014-NMCA-096, ¶ 11, 336 P.3d

 3 380. Criminal defendants in New Mexico are entitled to the effective assistance of

 4 appellate counsel. Id. ¶ 13 (“[W]here a right to counsel has been guaranteed, that right

 5 includes a guarantee that counsel be effective.”).

 6   {17}   The two-pronged ineffectiveness standard of Strickland, 466 U.S. at 687, see

 7 697-98, requires a defendant to show both that “counsel’s performance was deficient”

 8 and that “the deficient performance prejudiced the defense.” To show deficiency the

 9 defendant must demonstrate that “defense counsel did not exercise the skill of a

10 reasonably competent attorney.” Duncan, 1993-NMSC-011, ¶ 10 (citing Strickland,

11 466 U.S. at 687). Defense counsel’s performance is deficient if the “‘representation

12 fell below an objective standard of reasonableness’” under prevailing professional

13 norms. Lytle v. Jordan, 2001-NMSC-016, ¶ 26, 130 N.M. 198, 22 P.3d 666 (quoting

14 Strickland, 466 U.S. at 688). The defendant must also show prejudice to the defense

15 resulting from counsel’s deficient performance. Id. ¶ 25. To show actual prejudice,

16 there must have been “a reasonable probability that, but for counsel’s unprofessional

17 errors, the result of the proceeding would have been different.” Strickland, 466 U.S.

18 at 694. “A reasonable probability is a probability sufficient to undermine confidence



                                              8
 1 in the outcome [of the proceeding].” Id. It is the defendant’s burden to show both

 2 incompetence and prejudice. State v. Grogan, 2007-NMSC-039, ¶ 11, 142 N.M. 107,

 3 163 P.3d 494.

 4   {18}   A “‘defendant must [also] overcome the presumption that, under the

 5 circumstances, the challenged action might be considered sound trial strategy.’” Lytle,

 6 2001-NMSC-016, ¶ 26 (quoting Strickland, 466 U.S. at 689). Appellate court

 7 “‘scrutiny of counsel’s performance must be highly deferential.’” Id. (quoting

 8 Strickland, 466 U.S. at 689). Every effort should be made “‘to eliminate the distorting

 9 effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,

10 and to evaluate the conduct from counsel’s perspective at the time.’” Id. (quoting

11 Strickland, 466 U.S. at 689).

12   {19}   A court may “‘dispose of an ineffectiveness claim on the ground of lack of

13 sufficient prejudice’” to avoid the deficient performance analysis if this simplifies

14 disposition. State v. Plouse, 2003-NMCA-048, ¶ 13, 133 N.M. 495, 64 P.3d 522

15 (quoting Smith v. Robbins, 528 U.S. 259, 286 n.14 (2000)), abrogated on other

16 grounds by State v. Garza, 2009-NMSC-038, ¶ 48, 146 N.M. 499, 212 P.3d 387; see

17 also Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an

18 ineffective assistance claim . . . to address both [the deficiency and prejudice]



                                              9
 1 components of the inquiry if the defendant makes an insufficient showing on one.”).

 2 “[T]he proper standard for evaluating [a] claim that appellate counsel was ineffective

 3 . . . is that enunciated in Strickland.” Smith, 528 U.S. at 285 (emphasis added).

 4 B.       Petitioner’s Ineffective Assistance of Appellate Counsel Claims

 5   {20}   Petitioner advances alternative arguments to establish ineffective assistance of

 6 appellate counsel: (1) prejudice should be presumed because Appellate Counsel’s

 7 performance was so deficient that Petitioner is entitled to a new appeal or (2)

 8 Petitioner suffered actual prejudice on his direct appeal because his conviction would

 9 have been reversed had Appellate Counsel not performed so deficiently.

10   {21}   Petitioner points to numerous specific errors and omissions of Appellate

11 Counsel to support his ineffective assistance of appellate counsel (IAAC) claim.

12 Appellate Counsel’s brief in chief on direct appeal lacked record citations required

13 by our Rules of Appellate Procedure. See Rule 12-213(A) NMRA (2010, recompiled

14 2017). Petitioner argues that Appellate Counsel failed to develop “almost all of the

15 seven issues raised on appeal . . . and failed in some instances to communicate to the

16 [Court of Appeals] in full sentences or completed thoughts.” Petitioner observes that

17 Appellate Counsel “failed to argue fundamental error on the issues raised on appeal

18 that were not preserved by trial counsel.” Petitioner notes that Appellate Counsel



                                               10
 1 failed to submit a reply brief to the Court of Appeals in response to the State’s answer

 2 brief which specifically noted the shortcomings of Petitioner’s brief in chief.

 3 Appellate Counsel failed to submit a timely petition for a writ of certiorari in this

 4 Court. Petitioner also claims that he was not advised to seek new counsel when

 5 Appellate Counsel took leave from her law practice to seek medical treatment and

 6 that Appellate Counsel neglected to inform Petitioner of the status of his appeal. The

 7 State concedes that Appellate Counsel’s performance was “quite lacking.” Without

 8 further analysis, we presume deficient performance based on this agreement of the

 9 parties.

10 1.       Appellate Counsel’s errors did not deprive Petitioner of his constitutional
11          right to one appeal and therefore do not justify presumed prejudice in this
12          case

13   {22}   Petitioner argues that because Appellate Counsel “was ineffective and deprived

14 him of an appeal on the merits of his case,” he is entitled to a new appeal. Petitioner

15 asserts that Appellate Counsel’s “omissions in the brief in chief constitutionally

16 prejudiced [Petitioner].” We examine the question whether presumed prejudice

17 should apply in Petitioner’s circumstances.

18   {23}   Prejudice should be presumed in circumstances “so likely to prejudice the

19 accused that the cost of litigating their effect in a particular case is unjustified.”



                                              11
 1 United States v. Cronic, 466 U.S. 648, 658 (1984); see, e.g., Grogan, 2007-NMSC-

 2 039, ¶ 12. Three examples of deficient performance that could warrant a presumption

 3 of prejudice: are (1) denial of representation by counsel, (2) failure of defense counsel

 4 to subject the state’s case to meaningful adversarial testing, and (3) denial of effective

 5 cross-examination of state witnesses. Grogan, 2007-NMSC- 039, ¶ 12 (citing Cronic,

 6 466 U.S. at 659).

 7   {24}   No New Mexico court has presumed prejudice based on the argument advanced

 8 by Petitioner. Petitioner asserts that he was deprived of his right to appeal because

 9 Appellate Counsel’s errors resulted in the inability of the Court of Appeals to

10 consider the merits of his claims. In support of this argument, Petitioner cites

11 Commonwealth v. Fink, 2011 PA Super 141, 24 A.3d 426. The reasoning in Fink is

12 helpful in evaluating Petitioner’s claim, but we reach a different conclusion than

13 Petitioner reaches.

14   {25}   In Fink, a defendant appealed his conviction, challenging the trial court’s

15 denial of his motion to suppress the statement he gave to police. Id. at 429. The

16 appellate court concluded that the appellate brief was “insufficient” and affirmed the

17 conviction. Id. Subsequently on postconviction appeal, the same appellate court

18 reinstated the defendant’s right to direct appeal, holding that “only those omissions



                                               12
 1 of counsel on appeal that completely foreclose appellate review offer a basis for a

 2 presumption of prejudice on a [subsequent ineffective assistance of counsel] claim.”

 3 Id. at 429, 432, 434. Fink supports the proposition that prejudice should be presumed

 4 only when the defendant was completely deprived of a merits review at the appellate

 5 level. Id. at 432.

 6   {26}   In this case, Appellate Counsel’s numerous errors did not deprive Petitioner of

 7 his right to a merits review by the Court of Appeals. Appellate Counsel filed a forty-

 8 eight page brief in the Court of Appeals. Although the Court of Appeals admonished

 9 Appellate Counsel for the brief’s shortcomings, it still considered the merits of

10 arguments made therein. See generally Lukens, A-1-CA-30819, mem. op. For

11 example, despite Appellate Counsel’s failure to cite the record proper, the Court of

12 Appeals thoroughly addressed an issue raised by Petitioner pertaining to an audio

13 recording made by Child’s mother that was admitted into evidence at trial. See id. ¶¶

14 18-19. After a multiparagraph merits analysis, the Court of Appeals described

15 Petitioner’s argument as “particularly unpersuasive in light of his cross-examination

16 of [Child’s] mother and his production of an expert witness to discredit the value of

17 the tape recordings.” Id. ¶ 19.

18   {27}   In its order denying Petitioner a writ of habeas corpus, the district court also



                                               13
 1 concluded that the Court of Appeals had adequately addressed Petitioner’s concerns

 2 on appeal, stating that

 3          it is not as though Petitioner was fully denied a meaningful review of his
 4          issues on appeal. Despite the Court of Appeals’ issues with the quality
 5          of Petitioner’s arguments and record citations on appeal, Petitioner was
 6          given the benefit of the doubt regarding his factual allegations and the
 7          [C]ourt [of Appeals] addressed the merits of several of his claims.

 8   {28}   In analyzing an IAAC petitioner’s assertion that deficient briefing caused the

 9 loss of the petitioner’s appeal of right and that prejudice should therefore be

10 presumed, the determinative issue is whether the appellate court failed to conduct a

11 merits review or, in other words, whether “[c]ounsel’s constitutional error . . . caused

12 a total failure in the relevant proceeding.” Fink, 24 A.3d at 432 (internal quotation

13 marks and citation omitted). Petitioner’s direct appeal was not a total or even a

14 substantial failure. Petitioner’s right to direct appeal was not violated. Deficient

15 briefing does not necessarily equate to ineffectiveness. Because Appellate Counsel’s

16 failures narrowed the scope of Petitioner’s appeal without denying a merits review,

17 those failures do not offer a basis for a presumption of prejudice on a subsequent

18 IAAC claim. Id. Accordingly, under the facts presented here, we conclude that

19 Petitioner must prove how Appellate Counsel’s deficient performance caused actual

20 prejudice.



                                               14
 1 2.       Petitioner has not shown actual prejudice from Appellate Counsel’s
 2          deficient performance

 3   {29}   Petitioner argues it is likely that, but for the errors of Appellate Counsel, the

 4 Court of Appeals would have reversed Petitioner’s conviction. The State counters that

 5 even if Appellate Counsel had performed competently, Petitioner’s conviction would

 6 not have been reversed on appeal and that Petitioner therefore did not suffer

 7 prejudice.

 8   {30}   The weight of evidence of prejudice is decided on a case-by-case basis. See

 9 State v. Favela, 2015-NMSC-005, ¶ 18, 343 P.3d 178. Petitioner maintains that but

10 for Appellate Counsel’s deficiencies, the result of his appeal would have been

11 different for two reasons. Petitioner claims that he was convicted under an “improper”

12 jury instruction and that Appellate Counsel prejudiced his appeal by raising this issue

13 in a manner that precluded review by the Court of Appeals. Petitioner also claims the

14 evidence at trial was insufficient to support a conviction for child abuse based on an

15 endangerment theory. He insists that if Appellate Counsel had “fully argued these

16 issues to the Court of Appeals and/or filed a timely petition for certiorari in this

17 Court, it is reasonably probable that [Petitioner]’s sole conviction . . . would have

18 been reversed and re-trial prohibited.” We disagree with Petitioner and determine that

19 Appellate Counsel’s errors did not amount to actual prejudice in violation of

                                               15
 1 Petitioner’s constitutional right to an appeal.

 2 a.       Appellate Counsel’s failure to adequately raise a jury instruction issue did
 3          not prejudice Petitioner’s appeal

 4   {31}   Petitioner maintains that his conviction was “based on a subsequently

 5 discredited theory of criminally negligent child abuse,” that the corresponding jury

 6 instruction used at his trial was erroneous, and that Appellate Counsel “was so

 7 ineffectual that the Court of Appeals refused to address the claim.” According to

 8 Petitioner, Appellate Counsel attempted to argue that the jury instruction used

 9 erroneously applied the civil negligence standard of “knew or should have known”

10 to the foreseeability of risk to Child but was ineffective in presenting this argument

11 to the Court of Appeals. Petitioner asserts that the “appeal certainly would have

12 turned out differently” but for Appellate Counsel’s errors.

13   {32}   Appellate Counsel’s appellate brief acknowledged that the jury instruction

14 error was not preserved at trial but failed to argue that the Court of Appeals could

15 consider the issue under the fundamental error exception. See Rule 12-216(B) NMRA

16 (1993). The Court of Appeals responded to the jury instruction issue and concluded,

17 “[W]e find no error and will not address these claims further.” Lukens, A-1-CA-

18 30819, mem. op. ¶ 20. Petitioner concludes that he would have prevailed if Appellate

19 Counsel had fully articulated this issue to the Court of Appeals. We disagree.

                                             16
 1 Appellate Counsel’s failure to raise fundamental error did not prejudice Petitioner’s

 2 appeal because the jury instruction was not erroneous.

 3   {33}   We again look to Strickland to assess the validity of Petitioner’s claim of

 4 prejudice. We do not need to assess whether Appellate Counsel adequately raised the

 5 jury instruction issue nor whether the brief’s shortcomings concerning this issue

 6 amounted to deficient performance. As previously discussed, we “dispose of [this]

 7 ineffectiveness claim on the ground of lack of sufficient prejudice” and avoid analysis

 8 of deficient performance altogether. Plouse, 2003-NMCA-048, ¶ 13. Under the

 9 second prong of the Strickland test, we review Petitioner’s claim of prejudice.

10   {34}   A petitioner suffers prejudice when there is a reasonable probability that, had

11 it not been for a deficient performance by appellate counsel, the petitioner would have

12 prevailed on direct appeal. Smith, 528 U.S. at 285. Applied to this case, Petitioner

13 must show that the use of the challenged jury instruction was fundamental error that

14 would have required reversal if Appellate Counsel had properly raised the issue on

15 direct appeal. Petitioner fails to meet his burden.

16   {35}   At Petitioner’s trial, jury instruction 5 tracked the negligent child abuse

17 instruction, UJI 14-602 NMRA (2000, withdrawn April 3, 2015), and specified the

18 elements of reckless disregard, stating in pertinent part,



                                              17
 1          To find that David Lukens, Jr. acted with reckless disregard, you must
 2          find that David Lukens, Jr. knew or should have known the defendant’s
 3          conduct created a substantial and foreseeable risk, the defendant
 4          disregarded that risk and the defendant was wholly indifferent to the
 5          consequences of the conduct and to the welfare and safety of [Child].

 6 (Emphasis added.) Appellate Counsel’s brief in chief specifically asserted that UJI

 7 14-602 was erroneous because the instruction included certain language that this

 8 Court had questioned in prior cases. See, e.g., State v. Schoonmaker, 2008-NMSC-

 9 010, ¶ 45, 143 N.M. 373, 176 P.3d 1105 (“UJI 14-602 on negligent child abuse

10 appears to be somewhat inconsistent by using a ‘should have known’ standard and

11 then later requiring that the defendant have ‘disregarded [the] risk and . . . [been]

12 wholly indifferent to the consequences.’” (alterations and omission in original)),

13 abrogated in part by State v. Consaul, 2014-NMSC-030, ¶¶ 37-38, 332 P.3d 850

14 (acknowledging confusion between criminally negligent and reckless child abuse and

15 requiring only recklessness, the conscious disregard of risk, for UJI 14-602).

16   {36}   Petitioner argues that the language of the instruction was subsequently

17 changed. The thrust of Petitioner’s argument is that later changes to the instruction

18 demonstrate that errors were present in the prior version. To the contrary, this Court

19 has never found UJI 14-602 to be legally insufficient. See State v. Lucero, 2017-

20 NMSC-008, ¶ 32, 389 P.3d 1039 (reinforcing the presumption that the district court’s



                                             18
 1 reliance on UJI 14-602 was conclusive of the jury having been properly instructed).

 2 This Court has also recognized the presumption that a uniform jury instruction

 3 correctly states the law. State v. Johnson, 2001-NMSC-001, ¶ 15, 130 N.M. 6, 15

 4 P.3d 1233. We disagree with Petitioner’s assertion that the trial court’s use of the jury

 5 instruction was erroneous. Even if Appellate Counsel raised fundamental error

 6 regarding the jury instruction, the Court of Appeals would have concluded that the

 7 instruction was proper. Petitioner’s conviction would not have been reversed.

 8 Because the jury instruction was proper, no prejudice resulted when Appellate

 9 Counsel failed to raise fundamental error.

10   {37}   Petitioner’s discussion of the alleged jury instruction error relies heavily on

11 Consaul, 2014-NMSC-030, a case decided one full year after the Court of Appeals

12 mandate in Petitioner’s appeal. Consaul cannot support error in this case because

13 Consaul was not the law at the time of Petitioner’s direct appeal. Under Strickland,

14 we must evaluate Appellate Counsel’s conduct from Appellate Counsel’s perspective

15 at the time and without “‘the distorting effects of hindsight.’” Lytle, 2001-NMSC-

16 016, ¶ 26 (quoting Strickland, 466 U.S. at 689). An attorney’s assessment of the

17 merits of an issue depends on the law at the time. People v. Weninger, 686 N.E.2d 24,

18 27-28 (Ill. App. Ct. 1997) (“Representation based on the law prevailing at the time



                                              19
 1 of trial is adequate, and [trial] counsel is not incompetent for failing to accurately

 2 predict that existing law will change.” (emphasis added)). The same principles apply

 3 for claims of inadequate representation by appellate counsel on direct appeal. People

 4 v. Barnard, 470 N.E.2d 1005, 1012 (Ill. 1984) (“We have tested the performance of

 5 [the] defendant’s counsel, both at trial and on appeal, by the standards adopted by the

 6 Supreme Court in Strickland.”). Appellate Counsel for Petitioner could not claim

 7 error based on case law that did not exist.

 8   {38}   Even if Consaul was available at the time of Petitioner’s appeal, the facts in

 9 Consaul are distinguishable from Petitioner’s case. In Consaul, this Court reversed

10 a conviction for negligent child abuse causing great bodily harm, holding that the jury

11 should have received separate jury instructions on intentional child abuse and

12 negligent child abuse. Consaul, 2014-NMSC-030, ¶¶ 23, 26. In Petitioner’s case, all

13 charges of intentional child abuse were abandoned, and the jury only considered

14 negligent child abuse. Consaul could not affect the outcome of Petitioner’s appeal.

15   {39}   Finally, the new version of the jury instruction reflecting the change referred

16 to by Petitioner did not become effective until April 3, 2015, nearly five years after

17 Petitioner’s September 2010 sentencing and nearly two years after the August 2013

18 mandate in Petitioner’s direct appeal. See UJI 14-615 NMRA. By order of this Court,



                                              20
 1 the new instruction, UJI 14-615, applies to “cases filed or pending on or after April

 2 3, 2015,” and has no application in Petitioner’s case.

 3   {40}   Because Petitioner bases his argument on a future jury instruction and future

 4 case law, we cannot agree that Appellate Counsel’s failure to raise fundamental error

 5 in the trial court’s use of an allegedly erroneous jury instruction caused Petitioner

 6 prejudice. Our review of the record indicates that Appellate Counsel argued for

 7 reversal of Petitioner’s conviction based on the law as it existed at the time of

 8 Petitioner’s direct appeal. Appellate Counsel did not cause Petitioner prejudice for

 9 failing to predict the ruling of Consaul or subsequent changes in jury instructions.

10 b.       Appellate Counsel’s failure to challenge the sufficiency of the evidence did
11          not constitute deficient performance, nor did it prejudice Petitioner

12   {41}   Petitioner’s final argument is that the State did not present sufficient evidence

13 to support a theory of child abuse by endangerment. Petitioner claims that by failing

14 to challenge sufficiency of the evidence, Appellate Counsel performed deficiently and

15 Appellate Counsel’s performance prejudiced Petitioner. Petitioner states that “the

16 appellate courts would have ruled in [his] favor had [A]ppellate [C]ounsel not utterly

17 failed to brief this issue in the Court of Appeals” or failed to apply for certiorari in

18 this Court. The State argues against such a finding of prejudice because “no error

19 occurred in the trial below” where “more than sufficient evidence” supported child

                                               21
 1 abuse by endangerment.

 2   {42}   We review a jury’s verdict to determine “whether substantial evidence of either

 3 a direct or circumstantial nature exists to support a verdict of guilt beyond a

 4 reasonable doubt with respect to every element essential to a conviction.” State v.

 5 Sutphin, 1988-NMSC-031, ¶ 21, 107 N.M. 126, 753 P.2d 1314. The evidence “is

 6 viewed in the light most favorable to the guilty verdict.” State v. Ramirez, 2018-

 7 NMSC-003, ¶ 6, 409 P.3d 902 (internal quotation marks and citation omitted). This

 8 Court will not substitute its judgment for that of the jury so long as a rational jury

 9 could have found the essential facts required for a conviction beyond a reasonable

10 doubt. Id.

11   {43}   “Abuse of a child consists of a person knowingly, intentionally or negligently,

12 and without justifiable cause, causing or permitting a child to be . . . placed in a

13 situation that may endanger the child’s life or health.” Section 30-6-1(D)(1) (2005).

14 Jury instruction 5 stated,

15          1.    David Lukens, Jr. caused [Child] to be placed in a situation which
16                endangered the life or health of [Child];
17          2.    [David Lukens, Jr.] acted with reckless disregard . . . ;
18          3.    David Lukens, Jr.’s actions or failure to act resulted in great
19                bodily harm to [Child], to wit: rib fracture;
20          4.    [Child] was under the age of 18;
21          5.    This happened in New Mexico on or between the 11th day of
22                September, 2005 and the 5th day of December, 2005.


                                              22
 1 We conclude from the following discussion that the State introduced sufficient

 2 evidence at trial for a rational jury to find each of the essential elements to prove

 3 Petitioner guilty of child abuse by endangerment beyond a reasonable doubt.

 4   {44}   Child’s mother testified about Child’s fragility when he was born. When asked

 5 if the hospital sent Child home with any particular warning about Child being fragile,

 6 she responded, “They constantly spoke to us about how fragile babies can be. They

 7 didn’t specifically say, ‘Be very, very careful,’ or anything like that, but you would

 8 think anybody would know that babies are fragile.” She also testified that Petitioner

 9 “was particularly rough” with Child a “couple of times,” stating that “he held him

10 kind of roughly like you would—you know when a baby cries, and you would gently,

11 you know, shake them and say, ‘Come on now. Stop crying.’ He was very rough

12 when he did that, and I did mention it to him.”

13   {45}   When asked about the significance of the location of Child’s rib fractures, one

14 of the State’s medical experts testified, “It’s significant in that in my radiology

15 literature, that in the setting of squeezing of the chest, fractures tend to occur along

16 the side and along the back, as in [Child].” The expert added that rib fractures are not

17 common because “[t]he ribs in children are very elastic.” “They bend before they

18 actually break, . . . and so we don’t see rib fractures, commonly, at all.” When the



                                              23
 1 State asked another medical expert whether Child’s rib fractures could be a result of

 2 “normal handling,” the expert answered, “Not unless you have an underlying bone

 3 problem, which, in my opinion, [Child] did not have.”

 4   {46}   Evidence introduced at trial included the video recording of the investigating

 5 detective’s interview with Petitioner. During the interview Petitioner stated, “I did get

 6 mad at [Child] . . . ; I did squeeze him.” The jury watched the recording of the

 7 interview and heard Petitioner say, “I really, really, really got mad” at Child.

 8 Petitioner also said that he “may have used excessive force.” And while being

 9 interviewed by the detective, Petitioner also stated, “I’m digging a grave here.”

10   {47}   When confronted with the statements he gave to police, Petitioner explained

11 that he was mad at himself, not mad at Child. “‘Contrary evidence . . . does not

12 provide a basis for reversal because the jury is free to reject [a d]efendant’s version

13 of the facts.’” State v. Galindo, 2018-NMSC-021, ¶ 12, 415 P.3d 494 (quoting State

14 v. Rojo, 1999-NMSC-001, ¶ 19, 126 N.M. 438, 971 P.2d 829). Because the factfinder

15 determines credibility, the jury was free to disbelieve Petitioner. See State v. Smith,

16 2001-NMSC-004, ¶ 16, 130 N.M. 117, 19 P.3d 254.

17   {48}   The trial court found that endangerment could be based either on Petitioner's

18 handling of Child while angry or on the injuries themselves or on Petitioner’s failing



                                              24
 1 to alert medical authorities. Based on Petitioner’s statements to the detective or on the

 2 testimony at trial, a rational jury could have found the essential facts required to

 3 convict Petitioner of endangerment of Child beyond a reasonable doubt. We hold that

 4 Appellate Counsel’s failure to argue insufficient evidence of endangerment did not

 5 constitute deficient performance and did not prejudice Petitioner because the State’s

 6 evidence was sufficient to prove endangerment.

 7 c.       We reject Petitioner’s specific claims concerning Appellate Counsel’s
 8          failure to challenge insufficient evidence of endangerment

 9   {49}   Petitioner makes the following three assertions concerning specific claims of

10 unchallenged insufficiency of the State’s evidence that he endangered Child: (1)

11 evidence of endangerment may not rely on actual injuries, (2) evidence of

12 endangerment is evidence of the forseeability of substantial risk of injury, and (3)

13 Petitioner’s failure to get medical attention for Child is not evidence of

14 endangerment.

15   {50}   Petitioner relies on four recent cases, decided one to four years after the Court

16 of Appeals mandate that affirmed his conviction, to support his specific claims of

17 unchallenged insufficient evidence that he endangered Child. See Lucero, 2017-

18 NMSC-008; State v. Nichols, 2016-NMSC-001, 363 P.3d 1187; Consaul, 2014-

19 NMSC-030; State v. Garcia, 2014-NMCA-006, 315 P.3d 331. Appellate Counsel did

                                               25
 1 not have the benefit of the cases Petitioner cites. As we have discussed, Petitioner errs

 2 in making IAAC claims reliant on case law that was unavailable to Appellate Counsel

 3 at the time of the appeal. Nevertheless we address Petitioner’s three assertions

 4 concerning unchallenged insufficiency.

 5   {51}   Petitioner contends that child abuse by endangerment must be established

 6 “without reliance on any resulting injuries.” This Court has stated, “Whether a

 7 defendant’s conduct creates a substantial and foreseeable risk of harm is what

 8 determines whether the child was endangered.” State v. Chavez, 2009-NMSC-035,

 9 ¶ 2, 146 N.M. 434, 211 P.3d 891. Endangerment does require evidence of the risk of

10 harm, but that does not exclude evidence of actual harm—such as the medical

11 experts’ testimony at trial concerning Child’s actual injuries—as irrelevant. Actual

12 harm may provide circumstantial evidence of the risk, as it did here. We maintain that

13 other testimony at trial established that Petitioner’s conduct was sufficient evidence

14 of the foreseeable risk of harm to Child.

15   {52}   In arguing that child abuse by endangerment must be foreseeable, Petitioner

16 implies that a reasonable person could not have foreseen that Petitioner’s act of

17 squeezing Child with excessive force would result in harm to Child. Petitioner asserts

18 that there was no evidence that Petitioner’s handling of Child while angry and



                                               26
 1 sleepless created a substantial and foreseeable risk of harm to Child and that his “own

 2 act of squeezing [Child] could not have formed the basis of his child endangerment

 3 conviction.” But the jury heard the testimony of Child’s mother and Petitioner’s own

 4 explanation of how he might have injured Child by using “excessive force.” Juries

 5 may “‘use their common sense to look through testimony and draw inferences from

 6 all the surrounding circumstances.’” State v. Phillips, 2000-NMCA-028, ¶ 14, 128

 7 N.M. 777, 999 P.2d 421 (citation omitted). The fragility of infants is common

 8 knowledge, and the risk of harm is substantial and foreseeable if infants are handled

 9 improperly. A rational jury could conclude that handling an infant with excessive

10 force creates a substantial and foreseeable risk of harm. In this light, the evidence was

11 sufficient for a jury to find Petitioner guilty of endangerment of Child.

12   {53}   Petitioner claims the State did not establish that failing to get medical attention

13 for Child amounted to endangerment. But the State presented evidence at trial of three

14 distinct theories of endangerment, and the trial court agreed in finding that

15 endangerment could be based either on Petitioner’s handling of Child while angry,

16 on the injuries themselves, or on failing to alert medical authorities. The trial court

17 stated, “the State has made out a prima facie case upon which a reasonable juror could

18 find that child abuse occurred and the defendant was the one that may have



                                                27
 1 committed the act, causing injury, and depriving Child of needed medical attention

 2 or care at that time.” Regardless of whether the State established how the failure to

 3 seek medical attention endangered Child, the jury had two other theories of

 4 endangerment it could consider. Accordingly, even if the State did not establish the

 5 connection between medical care and endangerment, Petitioner’s argument fails to

 6 establish insufficient evidence of endangerment.

 7 d.       Appellate counsel discretion determines which arguments to advance

 8   {54}   We recognize Appellate Counsel’s failure to make a sufficiency of the evidence

 9 argument, theoretically, as a tactical decision based upon strength of the evidence

10 presented at trial and the resultant weakness of the sufficiency argument on appeal.

11 Appellate Counsel had discretion to argue the most meritorious issues on appeal. An

12 insufficient evidence argument is not “so plainly meritorious that it would have been

13 unreasonable to winnow it out” of the appellate brief. Cargle v. Mullin, 317 F.3d

14 1196, 1202 (10th Cir. 2003). Counsel has discretion to choose which nonfrivolous

15 arguments to advance on appeal. Welch v. Workman, 639 F.3d 980, 1012-1013 (10th

16 Cir. 2011). Appellate attorneys are wise to focus on the strongest issue rather than

17 raise every viable issue.

18          “[The] weeding out of weaker issues is widely recognized as one of the
19          hallmarks of effective appellate advocacy . . . . [E]very weak issue in an

                                               28
 1          appellate brief or argument detracts from the attention a judge can
 2          devote to the stronger issues, and reduces appellate counsel’s credibility
 3          before the court. For these reasons, a lawyer who throws in every
 4          arguable point—‘just in case’—is likely to serve her client less
 5          effectively than one who concentrates solely on the strong arguments.”

 6 LaFevers v. Gibson, 182 F.3d 705, 722 (10th Cir. 1999) (alterations and omission in

 7 original) (quoting Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir.1989)). Contrary

 8 to Petitioner’s arguments, Appellate Counsel’s failure to discuss the sufficiency of the

 9 evidence was not deficient and did not prejudice Petitioner.

10 III.     CONCLUSION

11   {55}   Petitioner complains he suffered from ineffective assistance of appellate

12 counsel and was deprived of the constitutional right to appeal his conviction. We

13 conclude otherwise. Petitioner was afforded his appeal of right, the district court had

14 substantial evidence to support its findings, and Appellate Counsel’s shortcomings

15 did not prejudice Petitioner in this case. Petitioner is not entitled to a new appeal.

16 Petitioner is not entitled to a reversal of his conviction.

17   {56}   For the foregoing reasons, we affirm the district court’s denial of the petition

18 for writ of habeas corpus.




                                               29
1   {57}   IT IS SO ORDERED.



2                                 ___________________________________
3                                 GARY L. CLINGMAN, Justice

4 WE CONCUR:



5 ___________________________________
6 JUDITH K. NAKAMURA, Chief Justice



7 ___________________________________
8 PETRA JIMENEZ MAES, Justice



 9 ___________________________________
10 CHARLES W. DANIELS, Justice



11 ___________________________________
12 BARBARA J. VIGIL, Justice




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