                                                                                  FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                         September 17, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 GABRIEL G. QUINTANA,

       Petitioner - Appellant,

 v.                                                          No. 19-2076
                                                  (D.C. No. 2:18-CV-00469-KG-GJF)
 JAMES MULHERON, Warden;                                       (D. N.M.)
 HECTOR H. BALDERAS, ATTORNEY
 GENERAL FOR THE STATE OF NEW
 MEXICO,

       Respondents - Appellees.
                      _________________________________

            ORDER DENYING CERTIFICATE OF APPEALABILITY *
                   _________________________________

Before LUCERO, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      Gabriel Quintana, a New Mexico state prisoner proceeding pro se, 1 seeks a

certificate of appealability (COA) to challenge a district court order denying his

petition for a writ of habeas corpus under 28 U.S.C. § 2254. For the following

reasons, we deny Quintana’s request for a COA and dismiss this matter.




      *
         This order is not binding precedent, except under the doctrines of law of the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.
      1
        Because Quintana appears pro se, we liberally construe his pleadings,
stopping short of serving as his advocate. See United States v. Pinson, 584 F.3d 972,
975 (10th Cir. 2009).
                                    BACKGROUND

      Because this matter comes to us as a petition for habeas relief under § 2254,

we assume that the factual findings of the New Mexico Supreme Court are correct.

See Hooks v. Workman, 689 F.3d 1148, 1163 (10th Cir. 2012) (quoting § 2254(e)(1)).

The New Mexico Supreme Court summarized the underlying facts in this matter as

follows:

      Gabriel (Defendant) and Marisela Quintana were married in 2003. 2 In June
      2005, Marisela left Defendant and moved in with her parents two miles away.
      In August of that year, Marisela obtained an order of protection barring
      Defendant from any contact with her or the couple’s children. Defendant
      violated the order by physically confronting Marisela at her place of work,
      and, on September 4, by going to her parents’ home in an attempt to remove
      the children.

      On the morning of September 5, 2005, Marisela left for work in her two-door
      Chevrolet Cavalier, accompanied by her mother Elisa Apodaca. As they
      approached the main highway, Defendant emerged from the bushes and
      stood in front of the car wearing black pants and a black jacket. He was angry
      and said he wanted to get back together with Marisela. Elisa told Defendant
      that Marisela did not want to be involved with him any longer. Marisela
      asked Defendant to move, but he persisted, ultimately opening the car door,
      entering the rear of the car, and attacking Marisela. He stabbed her in the leg,
      arms, back, breast and face. The wounds were not life threatening.

      When Defendant finally relented, Marisela locked the doors and started to
      drive to the highway to look for help. However, she noticed that Elisa was
      no longer in the vehicle, and as she drove away, Marisela observed Defendant
      in the driveway with his hand raised above Elisa. Marisela arrived at the
      home of her neighbors, who helped contact the police and paramedics.
      Elisa died at the scene, sustaining at least nine stab wounds, several of which
      penetrated deep within vital areas of her body cavity. She also suffered
      several defensive wounds. She died as a result of blood loss from a
      combination of the wounds, the most severe of which severed her aorta.


      2
        Quintana asserts that they were married in 1994, not 2003. But the date is not
relevant to our analysis.
                                             2
      Approximately twelve hours after the attack, police received a tip from
      Defendant’s brother, Carlos Heredia, stating that Defendant was at their
      parents’ house changing clothes. Defendant was apprehended in the vicinity
      shortly thereafter wearing a blue T-shirt, dark sweat pants, and boots. His
      clothes were wet from the waist down, and appeared soiled and littered with
      stickers. There was no blood on Defendant’s clothing at the time of his arrest.
      Whether these were the same clothes he wore at the time of the attack is a
      matter of some dispute, though the fact is not dispositive.

      The police investigation revealed two additional sets of facts relevant to our
      consideration regarding Defendant’s conduct between the time of the attack
      and his apprehension. First, another of Defendant’s brothers, Librado
      Heredia, told investigators that Defendant had contacted him, admitting that
      he had stabbed Marisela and Elisa, and requesting money to go to San Diego.
      State Police Officer Lorenzo Aguirre testified at trial that Librado had
      reported the same to him when he arrived at the home of Defendants’ parents
      on the morning of September 5.

      Second, at about 7:00 a.m. on the day of the attack, a janitorial worker
      observed an occupied white Ford truck near the restrooms in a no-camping
      area at Abiquiu Dam. He observed the same truck in the same location the
      following day, and reported the vehicle to Ranger Phil Martinez. On
      Wednesday, two days after the attack, Ranger Martinez inspected the vehicle
      and discovered a receipt and a torn photograph of Defendant’s family in a
      garbage bag in the bed of the truck. Ranger Martinez then contacted law
      enforcement, which later verified that the truck was registered to Defendant.
      They then obtained a warrant and searched the truck, finding nothing of
      significant evidentiary value.


State v. Quintana, No. 30,847, 2009 WL 6608347, at *1–2 (N.M. Oct. 19, 2009).

      On May 2, 2007, a New Mexico jury convicted Quintana of first-degree

murder of Elisa Apodaca; attempted second-degree murder of Marisela Quintana;

aggravated battery against a household member, Marisela Quintana; tampering with

evidence; and violating an order of protection. The New Mexico state district court

sentenced Quintana to life imprisonment for first-degree murder, three years

consecutive for attempted second-degree murder, three years consecutive for

                                            3
tampering with evidence, three years concurrent for aggravated battery against a

household member, and 364 days concurrent for violating an order of protection. The

court further ordered that Quintana would be eligible for parole after having served

thirty years of the life sentence plus the additional six years imposed consecutively.

      On direct appeal, the New Mexico Supreme Court concluded that the

underlying felony of aggravated battery against a household member violated the

Double Jeopardy Clause and must be vacated. Quintana, 2009 WL 6608347, at *2. It

further concluded that the conviction for tampering with evidence was supported by

sufficient evidence and that Quintana’s other arguments lacked merit. Id. at *5–10.

On remand, the district court vacated the conviction for aggravated battery against a

household member but left the sentence of life plus six years unchanged.

      On November 19, 2009, Quintana filed a pro se petition for post-conviction

relief in state court. A year later and now represented by court-appointed counsel,

Quintana filed an amended petition for post-conviction relief in state court based on

claims of ineffective assistance of trial counsel. His petition was accompanied by an

affidavit of one of his trial attorneys, Cynthia Hill, attesting to the defense team’s

ineffectiveness. On May 31, 2011, the state district court granted Quintana’s petition

for ineffective assistance of trial counsel, vacated his convictions, and ordered a new

trial—notably, the court did not rule on the merits of the petition, but entered

judgment as a default ruling against the State for failing to timely respond and appear

at a hearing as ordered. On June 24, 2011, the State filed a motion to reconsider.

After a hearing on the matter and receiving an affidavit from Quintana’s other trial

                                            4
attorney, Damian Horne, contradicting the statements made by his co-counsel, the

state district court denied the motion to reconsider. The State appealed, and the state

district court stayed Quintana’s new trial pending the decision of the New Mexico

Supreme Court.

      On March 23, 2013, the New Mexico Supreme Court held “that the conduct of

the District Attorney and the Attorney General did not rise to the level of stubborn

resistance to the district court’s orders that would justify the extreme sanction of

vacating Quintana’s jury convictions without both considering a response from

Respondents and after having had a full evidentiary hearing.” Quintana v. Bravo,

2013-NMSC-011, ¶ 2, 299 P.3d 414, 415. The Court therefore reversed the district

court’s order and remanded for reassignment to a different judge with directions to

hold “an evidentiary hearing on the merits of Quintana’s petition because of the

factual issues created by the competing affidavits of Quintana’s trial counsel.” Id. at

¶ 33, 299 P.3d at 421.

      On remand, the State filed a response to Quintana’s amended petition for state

post-conviction relief and once again submitted the affidavit of Mr. Horne denying

any ineffective assistance of counsel. Quintana also filed a motion seeking to add

additional claims to the petition. After the State submitted a response to the proposed

amendments and the state district court held a status hearing, the parties agreed to

leave to the court’s discretion which claims would be granted an evidentiary hearing.

      Ultimately, the state district court summarily dismissed several of Quintana’s

claims but granted an evidentiary hearing to consider trial counsel’s ineffectiveness

                                            5
as related to “(1) failure to effectively impeach prosecution witnesses; (2) failure to

investigate; (3) failure to retain expert witnesses; and (4) cumulative effect of

counsel’s errors.” R. Vol. 2 at 465. The court further granted Quintana permission to

explore the following allegations as they relate to trial counsel’s claimed

ineffectiveness: the victim’s family involvement in drugs and debts owed to drug

dealers; Quintana’s purported desire to take the stand in his defense; an anonymous

letter mailed to Quintana claiming to identify the actual perpetrator; error during jury

selection; and counsel’s neglect to seek a change of venue. After the hearing, the

state district court denied Quintana post-conviction relief on the merits. Quintana

sought a writ of certiorari, which the New Mexico Supreme Court denied on March

30, 2018.

      On May 18, 2018, Quintana filed a pro se petition for a writ of habeas corpus

under § 2254 in the District of New Mexico. In a thorough and well-reasoned report

and recommendation, the federal magistrate judge recommended that the district

court deny Quintana’s habeas petition on the merits. After receiving objections from

Quintana, the district court adopted in full the magistrate’s proposed findings and

recommended disposition and therefore denied Quintana’s § 2254 petition. On

limited remand, the district court also entered an order denying Quintana a COA.

      Quintana renews his request for a COA and argues that the district court erred

in denying his petition. In his Combined Opening Brief and COA Application,

Quintana raises the following arguments, all of which speak only to his claim of

ineffective assistance of trial counsel: (1) counsel’s failure to reconstruct the crime

                                            6
scene for the jury; (2) counsel failed to test the blood on three knives found in the

victim’s car; and (3) counsel did not call the victim’s or Quintana’s family members

as witnesses and failed to effectively cross examine or question those who were

called.

                                       DISCUSSION

          Under 28 U.S.C. § 2253(c)(1)(A), Quintana may appeal the district court’s

decision only if we issue a COA. To be entitled to a COA, he is required to make “a

substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). To do

so, he must “show that reasonable jurists could debate whether (or, for that matter,

agree that) the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Miller–El v. Cockrell, 537 U.S. 322, 336 (2003) (citation, brackets, and internal

quotation marks omitted). Further, because the state court adjudicated the merits of

Quintana’s claims, he is entitled to habeas relief only if the state court’s decision was

either “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States” or “based on

an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). Quintana has not satisfied this burden.

   A. Crime-Scene Reconstruction

          First, Quintana claims that he received constitutionally ineffective assistance

of trial counsel based on counsel’s failure to reconstruct the crime scene for the jury.

But Quintana failed to raise this argument in his § 2254 petition to the district court,

                                              7
so we will not consider it. See Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225,

1240 (10th Cir. 2005) (declining to address issues raised for the first time on appeal).

   B. Knives in the Victim’s Car

      Second, Quintana contends that the district court erred in not granting him

habeas relief based on the alleged failure to investigate knives found in the victim’s

car. He asserts that “[t]he error is that the police gave them back [to the victim’s

family] . . . because the victim’s family members say they use them regularly for

killing pigs,” but the “knives should have been confiscated and tested for analysis of

blood of both victims and others.” Appellant’s Combined Opening Br. & COA

Application at 8. Though Quintana’s argument concerning these knives is not entirely

clear, we liberally construe it to be an ineffective-assistance-of-counsel claim based

on counsel’s purported failure to investigate by testing the knives or to moving to

have the prosecution test them. No reasonable jurist could disagree with the district

court’s ruling that Quintana is not entitled to habeas relief on such a claim.

      As the federal magistrate judge correctly noted, the state district court

summarily denied and dismissed Quintana’s claim regarding the knives in the

victim’s car because Quintana offered “only vague allegations without any support to

the record of the case or to evidence outside the record” and “failed to cite to any

constitutional violation that might have occurred.” R. Vol. 2 at 464–65. Because the

deference we extend to state-court rulings under § “2254(d) applies even where there

has been a summary denial,” Quintana may succeed on his claim only if he can show

“there was no reasonable basis” for the state court’s decision. Cullen v. Pinholster,

                                            8
563 U.S. 170, 187 (2011) (citation omitted). To assess the availability of habeas

relief on a summary dismissal, “a habeas court must determine what arguments or

theories . . . could have supported[] the state court’s decision; and then it must ask

whether it is possible fairminded jurists could disagree that those arguments or

theories are inconsistent with the holding in a prior decision of [the Supreme] Court.”

Harrington v. Richter, 562 U.S. 86, 102 (2011).

       Having assessed Quintana’s § 2254 petition, his arguments to this court, his

petition for state post-conviction relief, and the state district court’s order, we

conclude that reasonable jurists could not debate the correctness of the district court’s

denial of habeas relief on this ground. As the state district court noted, Quintana’s

allegations are conclusory and vague. And to the extent Quintana is making a claim

regarding ineffective assistance of counsel for failure to investigate the knives, his

claim fails even under the most liberal of constructions. We have repeatedly held that

conclusory allegations are insufficient to warrant habeas relief for ineffective

assistance of counsel. See Johnson v. Raemisch, __ F. App’x __, No. 19-1044, 2019 WL

2514189, at *6 (10th Cir. June 18, 2019) (“Vague, speculative, and conclusory

allegations will not satisfy an applicant’s burden under Strickland’s prejudice prong.”

(citing Stafford v. Saffle, 34 F.3d 1557, 1564 (10th Cir. 1994))); Kidwell v. Martin, 480 F.

App’x 929, 934 (10th Cir. 2012) (“We have repeatedly stated that such conclusory

allegations do not satisfy Strickland’s prejudice element.” (citations omitted)).




                                             9
   C. The District Court Did Not Err in Denying Relief Based on Counsel’s
      Failure to Call or Cross-Examine Certain Family Members

       Third, Quintana argues that the district court erred in denying his habeas

petition based on trial counsel’s failure to question the victim’s and his family

members. Although Quintana does not specifically identify what he hoped would be

uncovered by questioning or cross-examining family members in his Combined

Opening Brief and COA Application, we assume he is referring to the alleged

connections between the victims and drug cartels that he mentions in other places in

his brief. There is also no room to question the correctness of the district court’s

ruling in this regard.

       The state district court heard arguments from both defense counsel and the

State regarding the alleged ineffectiveness of trial counsel for failing to question

witnesses about the victims’ involvement in drug trafficking during the evidentiary

hearing. Based on the arguments and evidence presented, the state district court then

denied relief on the merits. Specifically, the court offered the following analysis:

       Petitioner’s assertions regarding the alleged drug ties to the victims’
       family fail to establish prejudice. Even if . . . Marisela Quintana was
       questioned concerning the family drug ties, it is not clear what her
       testimony would have been. Marisela Quintana could have denied any
       illegal drug involvement, and the defense had no evidence to impeach her
       concerning such a statement. And, although Ms. Hill did not believe the
       drug angle was effectively investigated, no evidence was produced at the
       time of trial to support the victims’ family’s involvement in illegal drugs,
       nor has any evidence come to light in the habeas proceedings to support
       such a claim. . . . It is not enough to make a claim; it must be supported
       by evidence in order to prove that claim.

R. Vol. 2 at 494.


                                           10
      As the federal magistrate judge noted, the state district court’s analysis on this

point is entitled to our deference on federal habeas review. And even if we were not

extending deference, we discern no error in the state district court’s ultimate

conclusion. Quintana failed to offer any evidence that would suggest a “reasonable

probability that . . . the result of the proceeding would have been different” had the

family members been questioned about alleged drug ties. Strickland v. Washington,

466 U.S. 668, 694 (1984). As such, the state district court properly denied post-

conviction relief for ineffective assistance of counsel on this ground, and the federal

district court correctly followed suit. In his appellate materials, Quintana has also

failed to raise any evidence or make any argument that would offer a reason for

reasonable jurists to question the correctness of courts’ conclusions. Quintana is

therefore not entitled to federal habeas relief on this ground.

                                    CONCLUSION

      For the foregoing reasons, we conclude that jurists of reason could not debate

the correctness of the district court’s decision to deny Quintana’s habeas petition.

Accordingly, we DENY Quintana’s request for a COA and DISMISS this matter.

      We further grant Quintana’s motion to proceed on appeal in forma pauperis.

For Quintana’s benefit, we note that 28 U.S.C. § 1915 does not allow litigants to

avoid payment of filing and docketing fees—only the prepayment of those fees. He is




                                           11
still required to pay the full amount of the filing fee in this matter. See § 1915(b).


                                             Entered for the Court


                                             Gregory A. Phillips
                                             Circuit Judge




                                            12
