                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              MAR 17 2000
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                   Clerk

 JERRY VERNON,

          Petitioner-Appellant,
 v.                                                          No. 98-2070
 JOE R. WILLIAMS, Warden; CENTRAL                 (D.C. No. CIV-97-1051-JC/LFG)
 NEW MEXICO CORRECTIONAL                                     (D. N.M.)
 FACILITY; ATTORNEY GENERAL
 FOR THE STATE OF NEW MEXICO,

          Respondents-Appellees.




                                  ORDER AND JUDGMENT*


Before BALDOCK, KELLY, and HENRY, Circuit Judges.**


      Following a trial in New Mexico state court, a jury convicted Petitioner Jerry

Vernon of first degree murder and kidnapping. On direct appeal to the New Mexico

Supreme Court, see N.M. R. App. P. 12-102(A)(1), the court upheld Petitioner’s murder


      *
          This order and judgment is not binding precedent, except under the doctrines of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.
      **
         After examining the briefs and appellate record, this panel has determined 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.
conviction but reversed his kidnapping conviction. See State v. Vernon, 867 P.2d 407

(N.M. 1993). Petitioner currently is serving a life sentence on his murder conviction.

       Petitioner filed two unsuccessful petitions for post-conviction relief in state court

before filing his federal petition pursuant to 28 U.S.C. § 2254. In his federal habeas

petition, Petitioner argued: (1) he received ineffective assistance of counsel because

counsel failed to investigate and preserve issues regarding Petitioner’s competency at the

time of the offense; (2) he received ineffective assistance of counsel because counsel

failed to investigate and cross-examine a key witness concerning an immunity agreement;

(3) the trial court violated his due process rights by failing to instruct the jury that

unlawfulness was a necessary element of first degree murder; (4) the trial court violated

his due process rights by failing to instruct the jury that the state bore the burden of

proving beyond a reasonable doubt that Petitioner did not act in self-defense; and (5) the

State failed to produce exculpatory evidence. The district court adopted the

recommendation of a magistrate judge and denied the petition on the merits. Petitioner

urges only his first four arguments on appeal. We exercise jurisdiction pursuant to 28

U.S.C. § 2253, and affirm.1


       1
           A Petitioner may appeal the denial of a § 2254 petition only if “a circuit justice
or judge” issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A certificate of
appealability “may issue . . . only if the applicant has made a substantial showing of the
denial of a constitutional right.” Id. at § 2253(c)(2). In this case, the district court
initially issued a certificate of appealability (COA) based on a finding that Petitioner
made “a substantial showing of the denial of a constitutional right,” but did not identify
                                                                                   (continued...)

                                                2
                                              I.

       As an initial matter, Respondent claims that the time provisions of 28 U.S.C.

§ 2244(d) bar Petitioner’s petition.2 Petitioner’s state court conviction became final

before the AEDPA took effect. He therefore had one year after the AEDPA’s effective

date, or until April 24, 1997, in which to file his § 2254 petition. See Hoggro v. Boone,

150 F.3d 1223, 1226 (10th Cir. 1998). The time during which Petitioner had pending “‘a

properly filed application for State post-conviction or other collateral review’” is not

counted toward this one year period of limitation. Id. (quoting 28 U.S.C. § 2244(d)(2)).

       Petitioner filed his petition for state post-conviction relief on April 4, 1997. The

court denied the petition on May 30, 1997. Twenty-seven days later, on June 26, 1997,


       1
         (...continued)
any specific constitutional issue. Section 2253(c)(3) requires a district court to identify
the specific issue or issues warranting review. On partial remand from this court, the
district court issued a COA on the issue of “the standard a Federal Court must use when
assessing a State Court’s adjudication of a criminal defendant’s assertion of constitutional
error.” The issue identified by the district court’s second COA, however, does not
implicate the denial of a constitutional right and is inadequate. Petitioner now moves for
a certificate of appealability from this court pursuant to 28 U.S.C.§ 2253(c). While “this
court does not hear and decide issues on which a COA has not been granted,” Ross v.
Ward, 165 F.3d 793, 802 (10th Cir. 1999) (Kelly, J., concurring) (capital case), we will
construe Petitioner’s motion for COA addressed to this court as a motion for an expanded
COA, see id. at 803, and will address the merits of Petitioner’s issues, at least where
Respondent has had the opportunity to and did in fact brief the issues. Cf. Fed. R. App. P.
22(b)(2) (providing that notice of appeal constitutes request for COA addressed to the
judges of courts of appeals).
       2
         Section 2244(d)(1) provides in pertinent part, “A 1-year period of limitation shall
apply to an application for a writ of habeas corpus by a person in custody pursuant to the
judgment of a State court.”

                                              3
Petitioner filed a petition for a writ of certiorari with the New Mexico Supreme Court,

which the court denied on July 24, 1997. One hundred eleven days had elapsed from the

filing of the state court petition to the denial of certiorari. Petitioner filed a petition for

writ of habeas corpus in federal district court fifteen days later on August 8, 1997.

       Respondent argues that the twenty-seven days between the denial of Petitioner’s

state petition and the filing of the petition for writ of certiorari in the New Mexico

Supreme Court should be counted against Petitioner. Our recent opinion in Barnett v.

Lemaster, 167 F.3d 1321 (10th Cir. 1999), forecloses this result. In Barnett, we rejected a

construction of the term “pending” to mean “only the time during which an application

for post-conviction relief remains unresolved by a state district court.” Id. at 1323.

Barnett holds that the term “pending” “encompass[es] all of the time during which a state

prisoner is attempting, through proper use of state court procedures, to exhaust state court

remedies with regard to a particular post-conviction application.” Id.

       In Barnett, the limitations period was tolled from the time Barnett filed his state

application for habeas relief until the state supreme court denied his timely-filed petition

for a writ of certiorari. Although we did not explicitly state that the time between the

denial of the state application by the state district court and the filing of the petition for

certiorari was also included in the tolling period, we specifically noted that the certiorari

petition was timely and cited Martinez v. State, 796 P.2d 250, 251 (N.M. Ct. App. 1990),

for the proposition that a petition for writ of certiorari may be filed with the New Mexico


                                                4
Supreme Court within thirty days of the denial of a habeas petition. Barnett, 167 F.3d at

1323. Applying that reasoning here, Petitioner’s § 2254 motion in the district court was

timely.

                                                 II.

          Like in the district court, Petitioner argues on appeal that (1) the trial court violated

his due process rights by failing to instruct the jury that a necessary element of the murder

charge was that the killing was unlawful, (2) the trial court similarly denied him due

process by failing to instruct the jury that the State bore the burden of disproving self-

defense, (3) he received ineffective assistance of counsel because counsel failed to

present a diminished capacity defense, and (4) he similarly received ineffective assistance

of counsel because counsel failed to investigate and cross-examine an immunized

witness. The facts underlying this case are set forth in full in State v. Vernon, 867 P.2d

407 (N.M. 1993), and we need not repeat them here. Accordingly, we mention only those

facts pertinent to our analysis of the issues on appeal.

          When reviewing the denial of a habeas corpus petition, we are generally subject to

two different frameworks of analysis, depending on whether the state courts addressed the

merits of the claim for relief. Smallwood v. Gibson, 191 F.3d 1257, 1264 (10th Cir.

1999). If the state courts have not heard the claim on its merits, we review the federal

district court’s legal conclusions de novo and its factual findings, if any, for clear error.

Id. If the state courts have addressed the claim on its merits, we review the state court


                                                  5
ruling under the standard enunciated in 28 U.S.C. § 2254. Id.

       Pursuant to 28 U.S.C. § 2254,

       [A] federal court is precluded from granting habeas relief on any claim
       adjudicated on the merits by the state court, unless the state proceeding
       “resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the
       Supreme Court,” 28 U.S.C. § 2254(d)(1), or ‘resulted in a decision that was
       based on an unreasonable determination of the facts in light of the evidence
       presented in the State court proceeding,” id. § 2254(d)(2). In addition, we
       presume the factual findings of the state court are correct unless petitioner
       can rebut this presumption by clear and convincing evidence. See id.
       § 2254(e)(1).

Smallwood, 191 F.3d at 1264-65.3

                                              A.

       Petitioner first argues that his due process rights were violated because the jury

instructions in his case (1) did not include unlawfulness as an element of first-degree

murder and (2) did not instruct the jury that the State had the burden of disproving

Petitioner’s claim of self-defense. Petitioner did not raise these issue either on direct

appeal or in his first state petition for post-conviction relief. Thus, Respondent argues

that Petitioner has procedurally defaulted these issues. In denying Petitioner’s second

application for a writ of habeas corpus, the state district court stated simply: “The Petition


       3
          We note that the issue of standard of review under AEDPA is currently before the
Supreme Court. See Williams v. Taylor, 163 F.3d 860 (4th Cir. 1998), cert. granted, 119
S. Ct. 1355 (1999) (granting certiorari in a case involving interpretation of the AEDPA,
which we presume will resolve the “abstract” issue upon which the district court granted
the COA in this case). See also Boyd v. Ward, 179 F.3d 904, 912 (10th Cir.), petition for
cert. filed, (U.S. Dec. 6, 1999) (No. 99-7369).

                                              6
is denied as I find the arguments presented by Respondent to be persuasive. . . . Having

reviewed Petitioner’s reply, I note that I have read the entire transcript in this matter.

While I believe there to be no error, any error was harmless beyond a reasonable doubt.”

Respondent’s brief in response to the second petition was devoted largely to convincing

the court of Petitioner’s three procedural defaults of these issues: at trial, on direct appeal,

and in the first state post-conviction proceeding. The brief, however, also addressed the

merits of Petitioner’s claim.

       “Where a state has raised and preserved the issue of procedural default, federal

courts generally do not review issues that have been defaulted in state court on an

independent and adequate state procedural ground, unless the default is excused through a

showing of cause and actual prejudice or a fundamental miscarriage of justice.” Jackson

v. Shanks, 143 F.3d 1313, 1318 (10th Cir.), cert. denied, 119 S. Ct. 378 (1998). While we

might be able to conclude that the state court denied Petitioner’s second petition for post-

conviction relief on grounds of procedural default, we are not inclined to rely on a state

procedural rule that the state court did not clearly rely upon. See id. Further, the fact that

the state court may also have denied relief on the merits, as an alternative to procedural

default, may mean that the grounds relied on by the state court were not independent of

federal law. See Klein v. Neal, 45 F.3d 1395, 1398-99 (10th Cir. 1995) (holding that

federal court may presume that state court decided claim as a matter of federal law unless

state court clearly and expressly indicated it was relying on state law as the basis for its


                                               7
decision). Because the state court’s decision here is somewhat ambiguous, we will

examine the merits of Petitioner’s claims regarding jury instructions on unlawfulness and

self-defense.

       In State v. Parish, 878 P.2d 988, 992 (N.M. 1994), the New Mexico Supreme

Court held that “the issue of self-defense is not a necessary element in all manslaughter

cases. However, once properly raised by the defense, it becomes a necessary issue which

the State must disprove in order to establish the crime of manslaughter.” Consequently,

the court concluded that the manslaughter jury instruction “was simply erroneous in

neglecting to instruct on the element of unlawfulness after self-defense evidence had been

introduced.” Id. at 993.

       Even assuming the instructions were erroneous as a matter of federal constitutional

law, which they must be to warrant review under § 2254, the effect on a jury’s verdict of

an omission of an element of the offense from the jury instructions is subject to harmless

error analysis. Neder v. United States, 119 S. Ct. 1827 (1999); Scoggin v. Kaiser, 186

F.3d 1203 (10th Cir.), cert. denied, 120 S. Ct. 377 (1999). Under the analysis set forth in

Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), our inquiry is whether, in light of the

record as a whole, the error “had substantial and injurious effect or influence in

determining the jury’s verdict.”

       We have thoroughly reviewed the state court proceedings, Petitioner’s brief, the

district court’s order, and the entire record before us. The record contains overwhelming


                                              8
evidence of Petitioner’s guilt. Significantly, the New Mexico Supreme Court, while not

considering this precise issue, found the trial court had instructed the jury on the full

spectrum of homicide offenses and on self-defense. State v. Vernon, No. 20,027, op. at 2

(N.M. S. Ct. Nov. 16, 1993) (unpublished). Accordingly, any error in the effect of the

instruction was harmless and did not substantially influence or taint the jury’s verdict.

                                              B.

       Petitioner also argues his trial counsel provided ineffective assistance by (1) failing

to investigate and preserve issues regarding Petitioner’s competency at the time of the

offense and (2) failing to investigate and cross-examine the State’s star witness regarding

her immunity agreement with the State.

       Petitioner raised his ineffective assistance of counsel claims in his first state

petition. The state court addressed the claims on the merits. As mentioned above, if the

decision of the last state court to which the petitioner presented his federal claims fairly

appeared to rest primarily on resolution of those claims, and did not clearly and expressly

rely on an independent and adequate state ground, a federal court may address the

petition. Coleman v. Thompson, 501 U.S. 722, 735 (1991); Scoggin, 186 F.3d at 1205.

Accordingly, we may reach the merits of Petitioner’s ineffective assistance of counsel

claims because the state court rested its decision rejecting the ineffective assistance

claims on the criteria set forth in Strickland v. Washington, 466 U.S. 668 (1984). See

Coleman, 501 U.S. at 735 (court should assume “there is no independent and adequate


                                               9
state ground for a state court decision when the decision fairly appears to rest primarily on

federal law”); Scoggin, 186 F.3d at 1206.

       Petitioner’s ineffective assistance of counsel claims present mixed questions of

law and fact which we review de novo. Scoggin, 186 F.3d at 1206. To prevail on a claim

of ineffective assistance of counsel, a habeas petitioner must affirmatively show (1) that

counsel’s performance was deficient or, in other words, “fell below an objective standard

of reasonableness,” and (2) that counsel’s errors prejudiced petitioner because they “were

so serious as to deprive petitioner of a fair trial whose result is unreliable.” Strickland,

466 U.S. at 687-88; Scoggin, 186 F.3d at 1206. To meet the first prong, Petitioner must

overcome the “strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689. The second prong

requires Petitioner to establish the existence of “a reasonable probability that, but for

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

Id. at 694.

       Here, we assume without deciding that counsel’s failure “fell below an objective

standard of reasonableness.” See id. at 697 (where it is easier to deny an ineffective

assistance of counsel claim for lack of prejudice, a court need not determine whether

counsel’s performance was deficient); Scoggin, 186 F.3d at 1207 (citing Strickland for

same proposition). Accordingly, we proceed directly to the question of whether Petitioner

suffered prejudice. To succeed on his claim that counsel should have investigated and


                                              10
developed a potential defense, Petitioner must show that the defense would likely have

prevailed at trial. See United States v. Gray, 182 F.3d 762, 767 (10th Cir. 1999) (citing

Hill v. Lockhart, 474 U.S. 52, 59 (1985)). Because we conclude Petitioner has failed to

establish a reasonable probability that the result of the trial would have been different had

counsel investigated the diminished capacity issues, the alleged error does not warrant

setting aside Petitioner’s conviction.

       Petitioner further argues that his counsel provided ineffective assistance by failing

to investigate and cross-examine the State’s star witness regarding her immunity

agreement with the state. Petitioner’s bare allegations, however, fall far short of

establishing an ineffective assistance of counsel claim. The record shows that Petitioner’s

counsel effectively cross-examined the witness regarding her intoxication and

inconsistent statements to authorities. Accordingly, Petitioner suffered no prejudice and

his ineffective assistance of counsel claim fails.

       The judgment of the United States District Court for the District of New Mexico is

AFFIRMED.4

                                           Entered for the Court,



                                           Bobby R. Baldock
                                           Circuit Judge



       4
           Petitioner’s motion to strike appellee’s brief is DENIED.

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