                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               FEB 19 2003
                               FOR THE TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

    VALENTE LOPEZ,

                Petitioner - Appellant,

    v.                                                      No. 00-2247
                                                      D.C. No. CIV-97-952-MV
    JOE WILLIAMS, Warden,                                 (D. New Mexico)
    New Mexico Correctional Facility;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents - Appellees.


                               ORDER AND JUDGMENT            *




Before EBEL , ANDERSON , and KELLY , Circuit Judges.



         Petitioner Valente Lopez appeals the district court’s denial of his habeas

corpus petition.   1
                       The federal claim raised is a claim that the due process clause of

the Fourteenth Amendment was violated when Lopez was convicted of the crime

*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
       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.
of child abuse without requiring proof of an essential element of scienter.   See

Fiore v. White , 531 U.S. 225, 228-29 (2001). Lopez was convicted of child abuse

under New Mexico law, which, at the time of his bench trial, required a showing

of only ordinary civil negligence. He was sentenced to nineteen years’

imprisonment. While his conviction was pending on appeal before the New

Mexico Court of Appeals, the New Mexico Supreme Court interpreted the child

abuse statute to require a showing of criminal negligence. The court of appeals,

however, affirmed his conviction and sentence. Lopez claims that his conviction

violates his federal constitutional right to have the State prove each element of

a criminal offense beyond a reasonable doubt. We granted a certificate of

appealability on this issue, and we reverse.


                                 I. Procedural History

       Lopez was charged with first-degree child abuse in violation of N.M. Stat.

Ann. § 30-6-1(C).   2
                        Up through the time that Lopez was convicted and sentenced,

New Mexico courts had interpreted the child abuse statute as a strict liability



2
       § 30-6-1(C) states:
       Abuse of a child consists of a person knowingly, intentionally or
       negligently, and without justifiable cause, causing or permitting a child to
       be:
       (1) placed in a situation that may endanger the child’s life or health;
       (2) tortured, cruelly confined or cruelly punished; or
       (3) exposed to the inclemency of the weather.

                                            -2-
statute, which required no showing of criminal intent.     See, e.g., State v. Lucero ,

647 P.2d 406, 407-08 (N.M. 1982);      State v. Crislip , 796 P.3d 1108, 1115

(N.M. Ct. App. 1990). After Lopez appealed his conviction and sentence to the

New Mexico Court of Appeals, but before that court decided his appeal, the

New Mexico Supreme Court decided        Santillanes v. State .

       In Santillanes, the highest court of New Mexico held that “our

interpretation of [§ 30-6-1(C)] requires that the term ‘negligently’ be interpreted

to require a showing of criminal negligence instead of ordinary civil negligence.”

849 P.2d 358, 362 (N.M. 1993). It went on to state:

       [W]e conclude that the civil negligence standard, as applied to the
       child abuse statute, improperly goes beyond its intended scope and
       criminalizes conduct that is not morally contemptible. . . . We
       construe the intended scope of the statute as aiming to punish
       conduct that is morally culpable, not merely inadvertent. . . . We
       interpret the mens rea element of negligence in the child abuse
       statute, therefore, to require a showing of criminal negligence instead
       of ordinary civil negligence. That is, to satisfy the element of
       negligence in Section 30-6-1(C), we require proof that the defendant
       knew or should have known of the danger involved and acted with
       a reckless disregard for the safety or health of the child.

Id. at 365. Recognizing that its holding was a departure from previous judicial

interpretation of the statute, the court went on to address the appropriate

application of its decision to other cases. After analyzing prospective or

retroactive application under   Linkletter v. Walker , 381 U.S. 618 (1965), the court

held that its decision was not retroactive and would be applied prospectively.


                                           -3-
Santillanes , 849 P.2d at 367. And, in the very last sentence of the opinion, the

court stated that its decision would “govern all cases which are now pending on

direct review, provided the issue was raised and preserved below, and all cases

presently pending but in which a verdict has not been reached.”      Id. at 368.

       After Santillanes was decided, Lopez amended his appeal to claim that his

conviction could not stand because the State did not prove criminal negligence,

which Santillanes held was an element of the crime. The court of appeals,

however, affirmed Lopez’s conviction and sentence, holding that he was not

entitled to the benefit of the   Santillanes decision because he had not preserved the

issue at trial. The court held:

       [A]lthough the standard of criminal negligence may not have been
       met in this case, an issue we do not decide, the civil standard was
       met. As we pointed out in the second calendar notice, the standard
       set forth in Santillanes does not apply to this case. This case was
       prosecuted and Defendant was sentenced long before the      Santillanes
       decision, and there is no indication that the Santillanes issue was
       raised and preserved below. Therefore, the trial court relied on the
       correct standard and we will uphold its determination.

R., Tab 1, Ex. F at 3-4 (citation omitted). Lopez then petitioned for a writ of

certiorari, seeking review by the New Mexico Supreme Court; that petition was

denied.

       Lopez sought state post-conviction relief, again arguing that his conviction

violated his federal due process rights in light of the   Santillanes decision. The



                                              -4-
state court summarily denied the post-conviction petition, and the New Mexico

Supreme Court denied Lopez’s request for review.

       Having exhausted his state remedies, Lopez filed a petition for habeas

relief pursuant to 28 U.S.C. § 2254 in federal district court. The magistrate judge

recommended that the petition be denied; the district court summarily adopted the

magistrate’s findings and recommendation and dismissed the habeas petition.


                            II. AEDPA and Procedural Bar

       If a state court denies a federal claim on the merits, we review the claim

within the constraints of the Antiterrorism and Effective Death Penalty Act

(AEDPA). McCracken v. Gibson , 268 F.3d 970, 975 (10th Cir. 2001),

cert. denied, 123 S. Ct. 165 (2002). We may grant relief only if 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,’ . . . or ‘was based on an unreasonable determination of the facts in light

of the evidence presented in the State court proceeding.’”   Id. (quoting 28 U.S.C.

§ 2254(d)(1) and (2)).

       If a state court denies a federal claim on the basis of a separate state

procedural deficiency, we cannot reach the merits of the claim at all unless (1) the

state ground of decision was not adequate and independent of federal law; or



                                            -5-
(2) the petitioner has established a basis for excusing his procedural default.

Id. at 976.

       And, finally, if a state court did not reach the merits of a federal claim, and

our review is not barred by an adequate and independent state procedural

disposition, we review the claim on the merits without constraint imposed by

virtue of the state court judgment: we review the federal district court’s legal

conclusions de novo and factual findings for clear error.   Id. at 975.

       In deciding whether the state court addressed the merits of Lopez’s federal

due process claim, we look to the substance of the state court disposition. Lopez

argued on appeal that his conviction violated federal due process, in light of

Santillanes’ holding that criminal negligence was an essential element of felony

child abuse, because the State had been required to prove only ordinary

negligence, not criminal negligence, at his trial. The New Mexico Court of

Appeals refused to apply     Santillanes to Lopez’s case and denied relief because

Lopez did not preserve the    mens rea issue at trial. However it is denominated,

that is plainly a procedural default ruling.

       Recently, in Cargle v. Mullin we clarified when a state appellate court’s

rejection of an unpreserved claim is properly deemed a procedural default,

even when it has not been explicitly designated as such by the state court.

___ F.3d ___, Nos. 01-6027, 01-6041, 2003 WL 170427, at *7 (10th Cir. Jan. 27,


                                            -6-
2003). Although Cargle involved the slightly different context of appellate

plain-error review, it is instructive. In   Cargle , we concluded that:

       A state court may deny relief for a federal claim on plain-error
       review because it finds the claim lacks merit under federal law. In
       such a case, there is no independent state ground of decision and,
       thus, no basis for procedural bar. Consistent with that conclusion,
       the state court’s disposition would be entitled to § 2254(d) deference
       because it was a form of merits review. On the other hand, a state
       court could deny relief for what it recognizes or assumes to be
       federal error, because of the petitioner’s failure to satisfy some
       independent state law predicate. In such a case, that non-merits
       predicate would constitute an independent state ground for decision
       which would warrant application of procedural-bar principles on
       federal habeas. If the state procedural bar were then excused for
       some reason, the federal court would be left to resolve the
       substantive claim de novo, unconstrained by § 2254(d).

Id. (citation omitted) . The case before us, unencumbered by the extra layer of

plain-error review, presents an even more straightforward case of procedural bar.

Here, the state court summarily rejected Lopez’s federal claim because he failed

to satisfy an independent state predicate–he did not preserve the issue at trial.

The state court’s preservation requirement, a non-merits predicate to its rejection

of Lopez’s federal claim, is plainly an independent state ground that implicates

procedural-bar principles on federal habeas.       Id.

       The critical question, therefore, is whether there is reason to excuse the

procedural bar.

       We will not consider issues on habeas review that have been
       defaulted in state court on an independent and adequate state
       procedural ground, unless the petitioner can demonstrate cause and

                                             -7-
      prejudice or a fundamental miscarriage of justice. A state procedural
      ground is independent if it relies on state law, rather than federal
      law, as the basis for the decision. To be adequate, a state’s
      procedural rule must have been firmly established and regularly
      followed when the purported default occurred.

McCracken , 268 F.3d at 976 (citations and quotations omitted). It is clear that the

state’s procedural bar in this case was independent of federal law. The bar rests

on the lack of issue preservation, which is clearly a matter of state law. It is not

at all clear, however, that this procedural rule–that lack of proof on an essential

element of a crime must be preserved to receive any review on appeal (including

fundamental-error review)–was firmly established or regularly followed at the

time of Lopez’s trial. This is critical here because relieving the State of its

burden to prove an essential element of the offense is fundamental error.    See

State v. Osborne , 808 P.2d 624, 632 (N.M. 1991).     3



      The concept of fundamental error is firmly established in New Mexico law.

In a pre- Santillanes decision, the New Mexico Supreme Court held that “[a]n

exception to the general rule barring review of questions not properly preserved

below . . . applies in cases which involve fundamental error. Fundamental error

cannot be waived.”    Id. (quotation omitted). Thus, for example, because the

failure to instruct on the essential elements of an offense is fundamental error,

“it is irrelevant that the defendant was responsible for the error by failing to


3
      This is the same error regardless of whether trial is by jury or the court.

                                           -8-
object to an inadequate instruction or, as occurred in this case, by objecting to an

instruction which might have cured the defect in the charge to the jury.”         Id.

Notably, in Osborne , the court was faced with a situation similar to Lopez’s.

While that defendant’s direct appeal was pending, the New Mexico Supreme

Court decided that “unlawfulness” was an essential element of criminal sexual

contact of a minor, where it had not previously been recognized as such. Under

the circumstances of that case, the high court applied fundamental-error review

and reversed the conviction.     Id. at 633.

       In a post- Santillanes case, State v. Kirby , 930 P.2d 144 (N.M. 1996), the

New Mexico Supreme Court was again faced with a similar situation. After the

defendant had been tried and convicted, but before his appeal had been decided,

the state appeals court decided that criminal negligence was an element of

involuntary manslaughter. The defendant had not, however, objected at trial to

the lack of a criminal negligence element in his jury instructions. Nonetheless,

the appeals court applied the intervening decision in the case. The state supreme

court affirmed, holding that omitting an essential element from the jury

instructions was fundamental error subject to correction on appeal despite the lack

of preservation at trial.   Kirby , 930 P.2d at 145-46. Moreover, the court expressly

noted Santillanes’ unexplained disregard for this distinction. The          Kirby court

recognized that “[r]esponsibility for instructing the jury rests solely with the trial


                                               -9-
court. It is the duty of the court, not the defendant, to instruct the jury on the

essential elements of a crime. This distinction unfortunately was not drawn in the

preservation proviso in       Santillanes , but it is a distinction that we must make in

this case.” Id (quotation and citation omitted)       ; see also State v. Acosta , 939 P.2d

1081, 1084-86 (N.M. Ct. App. 1997) (following           Osborne and Kirby and applying

fundamental-error principle to reverse conviction for failure to instruct on

essential element recognized in decision issued after defendant’s trial but before

conclusion of appeal).    4



       In addition to these New Mexico authorities that seem particularly

applicable to our case, the following cases represent an illustrative, though not

exhaustive, list of cases in which New Mexico courts afforded fundamental-error

review to issues that were not preserved at trial:       State v. Castro , 53 P.3d 413,

413-14 (N.M. Ct. App. 2002) (reversing conviction);           State v. Cunningham ,

998 P.2d 176, 178-79 (N.M. 2000);          State v. Green,   861 P.2d 954, 960

(N.M. 1993) (reversing conviction);         State v. Elmquist , 844 P.2d 131, 135




4
       We stress that retroactivity is not the issue in this case. Santillanes clearly
stated that its holding would apply to cases pending on direct review. 849 P.2d at
368; see generally State v. Rogers , 602 P.2d 616, 618 (N.M. 1979) (holding that
concerns of retroactive application arise “only for causes that have been
finalized,” which means that appeal rights have been exhausted). This case is
about claim preservation, i.e., procedural default.

                                               -10-
(N.M. Ct. App. 1992) (reversing conviction);      Ortiz v. State , 749 P.2d 80, 82-83

(N.M. 1988) (reversing conviction).

      Our examination of New Mexico law shows that the procedural default rule

enforced against Lopez to bar even fundamental-error review, was not firmly

established and regularly followed either before, at the time of, or after Lopez’s

trial. Consequently, the procedural default in this case does not preclude federal

habeas review of the merits of Lopez’s federal claim.      See Romano v. Gibson ,

239 F.3d 1156, 1170 (10th Cir. 2001),     cert. denied , 534 U.S. 1045 (2001). We

are left to exercise our independent judgment in addressing the merits of Lopez’s

claim. See McCracken, 268 F.3d at 975.


                                        III. Merits

      “[T]he Due Process Clause of the Fourteenth Amendment forbids a State to

convict a person of a crime without proving the elements of that crime beyond a

reasonable doubt.”   Fiore , 531 U.S. at 228-29 (holding conviction based on

conduct that statute, properly interpreted, does not prohibit violates due process).

The New Mexico Supreme Court has held that the “negligence” element of the

child abuse statute requires proof of criminal negligence instead of ordinary

negligence: “proof that the defendant knew or should have known of the danger

involved and acted with a reckless disregard for the safety or health of the child.”

Santillanes , 849 P.2d at 365. It is clear from the record that the bench trial was

                                           -11-
conducted under the assumption, by both the parties and the court, that the State

was not required to prove intent and that proof beyond a reasonable doubt of       civil

negligence would satisfy the State’s burden. R., Trial Tape #4, 1, 9, 12. Our

review of the trial tapes leads us to conclude that the State was not required to

prove criminal negligence beyond a reasonable doubt, in violation of Lopez’s

right to due process under the Fourteenth Amendment. This conclusion does not,

however, end our inquiry. We will grant habeas relief for a constitutional

violation only if the error was not harmless.

       “When a federal judge in a habeas proceeding is in grave doubt about

whether a trial error of federal law had ‘substantial and injurious effect or

influence in determining the jury’s verdict,’ that error is not harmless.”     O’Neal v.

McAninch , 513 U.S. 432, 436 (1995) (quoting        Brecht v. Abrahamson , 507 U.S.

619, 637 (1993)). As we stated, there were repeated references at trial to the fact

that Lopez could be convicted upon proof of ordinary civil negligence, that the

crime required no criminal intent. In addition, in the course of stating his finding

of guilt, the trial judge told Lopez that it was “very clear . . . it was accidentally

done. I don’t think there was any testimony . . . that would indicate you

intentionally harmed the child. But I do find you did commit child abuse

negligently.” R., Trial Tape #12.




                                            -12-
       Our review of the trial tapes does not convince us that the trial court found

Lopez guilty upon a showing of criminal negligence; the evidence of criminal

negligence is decidedly underwhelming.      5
                                                We are left with, at the very least, grave

doubt as to whether the court’s conclusion that the state was not required to prove

criminal negligence had substantial and injurious effect or influence in

determining its verdict. As a result, we cannot say that this error, which clearly

affects substantial rights, was harmless, and we grant habeas relief.       See O’Neal ,

513 U.S. at 445.

       We REVERSE the district court’s judgment and grant the writ, with the

condition that the State may retry Lopez within a reasonable time. If retrial is not

commenced within a reasonable time, the State may be subject to further federal

proceedings regarding his release.     See Cargle , 2003 WL 170427, at *26.


                                                         Entered for the Court



                                                         David M. Ebel
                                                         Circuit Judge




5
       On the other hand, we cannot say that the evidence of criminal negligence
is so deficient that no rational trier of fact could have found criminal negligence
beyond a reasonable doubt, see Jackson v. Virginia , 443 U.S. 307, 319 (1979),
which allays any double jeopardy concerns that might arise regarding retrial.    See
Cargle , 2003 WL 170427, at *25-26.

                                            -13-
