                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  August 16, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT



 RICHARD D. RICHWINE,

              Plaintiff - Appellant,                     No. 12-2062
       v.                                               D. New Mexico
 ANTHONY ROMERO, Warden,                     (D.C. No. 1:09-CV-00870-JB-GBW)

              Defendant - Appellee.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.




      Proceeding pro se, Richard D. Richwine seeks a certificate of appealability

(“COA”) from this court so he can appeal the district court’s denial of his 28

U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no

appeal may be taken from a final order disposing of a § 2254 petition unless the

petitioner first obtains a COA). Because Richwine has not “made a substantial

showing of the denial of a constitutional right,” this court denies his request for a

COA and dismisses this appeal. Id. § 2253(c)(2).

      Richwine was convicted by a New Mexico jury of trafficking controlled

substances, possession of marijuana, and use or possession of drug paraphernalia.

He was sentenced to concurrent terms of nine years’ imprisonment on the
trafficking conviction, fifteen days’ imprisonment on the marijuana conviction,

and 364 days’ imprisonment on the paraphernalia conviction. Richwine appealed,

alleging (1) the evidence was insufficient to support his convictions, (2) he should

not have been convicting of trafficking a controlled substance because he was

originally charged with manufacturing a controlled substance, (3) the trial court

erred by denying his motion to continue his sentencing, (4) the trial judge was

biased against him, and (5) the trial court erred by admitting photographs of

alleged paraphernalia used to produce crack cocaine. After first denying

Richwine’s motion to amend his docketing statement to add claims of ineffective

assistance of counsel, the New Mexico Court of Appeals affirmed Richwine’s

convictions and sentence. The New Mexico Supreme Court denied Richwine’s

petition for writ of certiorari.

      Richwine then filed a state petition seeking post-conviction relief. In this

state habeas petition, Richwine alleged (1) prosecutorial misconduct, (2) multiple

instances of ineffective assistance of counsel, and (3) judicial bias and abuse of

discretion. The petition was denied by the state district court and Richwine’s

petition for writ of certiorari was denied by the New Mexico Supreme Court.

      Proceeding pro se, Richwine filed the instant § 2254 habeas application on

September 9, 2009. In the petition, Richwine raised all the claims previously

raised either on direct appeal or in his state post-conviction petition. He also

raised four additional claims of ineffective assistance of counsel, alleging trial

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counsel failed to (1) file a motion to recuse the trial judge, (2) challenge several

allegedly biased jurors, (3) rebut the prosecution’s statements about his prior

criminal history, and (4) investigate and rebut the prosecution’s statements about

his financial status. A federal magistrate judge addressed each of Richwine’s

claims in a comprehensive report and recommendation. The district court

considered Richwine’s written objections to the report and recommendation, 1 but

adopted the magistrate judge’s recommendation and dismissed Richwine’s § 2254

petition.

      As to the claims that were previously adjudicated by the New Mexico state

courts, the district court reviewed those claims under the standard set out in the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), concluding the state

courts’ adjudication was not contrary to, nor an unreasonable application of

clearly established federal law. 2 28 U.S.C. § 2254(d). Because the four

unexhausted new claims of ineffective assistance of counsel had not been

presented to the state court, the federal district court reviewed them de novo. See

28 U.S.C. § 2254(b)(2) (providing federal court can deny on the merits

      1
       The district court concluded Richwine’s objections included four claims
that were waived because they were raised for the first time in the objections. See
United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit,
theories raised for the first time in objections to the magistrate judge’s report are
deemed waived.”).
      2
        The court concluded Richwine’s claim his trial attorney failed to conduct
an adequate investigation wholly lacked a factual basis and his claim counsel
failed to request a lesser-included instruction was controverted by the record.

                                          -3-
unexhausted habeas claims). The court denied relief on all four claims,

concluding the record contained no factual support for one claim and Richwine

was not able to meet either the performance or prejudice prongs of Strickland as

to the other three claims. See Strickland v. Washington, 466 U.S. 668, 677-78

(1984).

      Richwine also raised a claim that he is receiving inadequate legal material

in prison. The district court concluded this claim must be brought under 42

U.S.C. § 1983 and, accordingly, dismissed it without prejudice.

      To be entitled to a COA, Richwine must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite

showing, he must demonstrate “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) (quotations

omitted); see also Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that

when a district court dismisses a habeas petition on procedural grounds, a

petitioner is entitled to a COA only if he shows both that reasonable jurists would

find it debatable whether he had stated a valid constitutional claim and debatable

whether the district court’s procedural ruling was correct). In evaluating whether

Richwine has satisfied his burden, this court undertakes “a preliminary, though

not definitive, consideration of the [legal] framework” applicable to each of his

                                         -4-
claims. Miller-El, 537 U.S. at 338. Although Richwine need not demonstrate his

appeal will succeed to be entitled to a COA, he must “prove something more than

the absence of frivolity or the existence of mere good faith.” Id. (quotations

omitted).

      This court has reviewed Richwine’s appellate brief and application for

COA, the Report and Recommendation, the district court’s order, and the entire

record on appeal pursuant to the framework set out by the Supreme Court in

Miller-El and concludes Richwine is not entitled to a COA. The district court’s

resolution of Richwine’s habeas application is not reasonably subject to debate

and his claims are not adequate to deserve further proceedings. Accordingly,

Richwine has not “made a substantial showing of the denial of a constitutional

right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).

      This court denies Richwine’s request for a COA and dismisses this appeal.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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