                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 22, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                TENTH CIRCUIT



 MARTIN GONZALES,

              Petitioner - Appellant,                    No. 09-2252
       v.                                             (D. New Mexico)
 GEORGE TAPIA, Warden; GARY K.              (D.C. No. 1:09-CV-00590-JCH-LFG)
 KING, Attorney General of the State
 of New Mexico,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


      Martin Gonzales, a New Mexico state prisoner proceeding pro se, seeks a

certificate of appealability (COA) to appeal the denial of his application under

28 U.S.C. § 2254 for habeas relief. See 28 U.S.C. § 2253(c) (requiring COA to

appeal denial of application). Because Mr. Gonzales has failed to make a

substantial showing of the denial of a constitutional right, as required by

§ 2253(c)(2), we deny his request for a COA and dismiss the appeal.

I.    BACKGROUND

      Mr. Gonzales was convicted by a jury in New Mexico state court of 36

counts of first-degree criminal sexual penetration, 25 counts of second-degree

criminal sexual penetration, 61 counts of third-degree criminal sexual contact of a
minor, and 61 counts of second-degree kidnapping. On March 23, 2005, he was

sentenced to 873 years’ imprisonment, and two years’ parole. He appealed, and

the New Mexico Court of Appeals affirmed. The New Mexico Supreme Court

denied his petition for a writ of certiorari on March 14, 2008.

      On June 12, 2009, Mr. Gonzales filed his § 2254 application in the United

States District Court for the District of New Mexico. The assigned magistrate

judge issued a recommendation that Mr. Gonzales’s claims be denied and his

application dismissed with prejudice. Mr. Gonzales did not object to the

magistrate judge’s recommendation, and the district court adopted it on

September 14, 2009.

      He now seeks a COA on the grounds (1) that he was denied his right to a

speedy trial, (2) that he received ineffective assistance of counsel, and (3) that his

punishment was cruel and unusual because his sentence was too long and his bond

was set too high. With the exception of the bond-related claim, these are the

same claims raised in his § 2254 application to the district court and his appeal to

the New Mexico Court of Appeals.

II.   DISCUSSION

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” Id. § 2253(c)(2). This standard requires “a

demonstration that . . . includes showing that reasonable jurists could debate

whether (or, for that matter, agree that) the petition should have been resolved in

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a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000)

(internal quotation marks omitted). In other words, the applicant must show that

the district court’s resolution of the constitutional claim was either “debatable or

wrong.” Id.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

provides that when a claim has been adjudicated on the merits in a state court, a

federal court can grant habeas relief only if the applicant establishes that 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.” 28 U.S.C. §

2254(d)(1), (2). As we have explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the Court has on a set of materially indistinguishable facts.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal

quotation marks omitted). Relief is provided under the “unreasonable

application” clause “only if the state court identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. (brackets and internal quotation


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marks omitted). Thus, a federal court may not issue a habeas writ simply because

it concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. See id. Rather,

that application must have been unreasonable. Therefore, for those of

Mr. Gonzales’s claims that the New Mexico Court of Appeals adjudicated on the

merits, “AEDPA’s deferential treatment of state court decisions must be

incorporated into our consideration of [his] request for [a] COA.” Dockins v.

Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      In this case the New Mexico Court of Appeals carefully and thoroughly

addressed the issues raised by Mr. Gonzales in this court except for his claim of

excessive bail. We do not consider the bail issue, however, because it was not

raised in federal district court. See Kelley v. City of Albuquerque, 542 F.3d 802,

817 (10th Cir. 2008). And as for the remaining issues, no reasonable jurist could

debate the correctness of the magistrate judge’s report and recommendation,

which granted appropriate AEDPA deference to the state appellate decision.

There was no need for an evidentiary hearing on Mr. Gonzales’s claims.

      We add two comments on procedural matters in this case. First,

Mr. Gonzales timely filed his notice of appeal and application for a COA with

respect to the district court’s judgment of September 14, 2009. The record shows

that Mr. Gonzales’s notice of appeal was received by the district court on

October 14, 2009, within 30 days of the district court’s judgment. See Fed. R.

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App. P. 4(a)(1)(A) (notice of appeal must be filed within 30 days). The district

court, however, filed the pleadings on October 15. As a result, it appeared that

the appeal was untimely, leading to unnecessary confusion and delay. We assume

that the court clerk will be taking steps to prevent the recurrence of such errors.

       Second, we note that Mr. Gonzales probably waived his right to appeal the

district court’s judgment by not objecting to the magistrate judge’s

recommendations. See Gardner v. Galetka, 568 F.3d 862, 871 (10th Cir. 2009).

But we need not resolve that question because we have determined on the merits

that Mr. Gonzales is not entitled to relief.

III.   CONCLUSION

       We DENY Ms. Gonzales’s request for a COA and DISMISS the appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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