                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                        MAY 13 2003
                     UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT                    PATRICK FISHER
                                                                               Clerk


 MARTIN EDWARD CAMPBELL,

          Petitioner-Appellant,

 v.                                                    No. 02-2236
                                                    (D. New Mexico.)
 JOE WILLIAMS, Warden, Lea County            (D.Ct. No. CIV-01-927-LH/RLP)
 Correctional Facility; ATTORNEY
 GENERAL FOR THE STATE OF
 NEW MEXICO,

          Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before EBEL, LUCERO, and O’BRIEN, Circuit Judges.



      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.


      *
        This order and judgment is not binding precedent except under the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.
      Mr. Martin Campbell applies pro se 1 for a Certificate of Appealability

(“COA”) 2 of the district court’s denial of his petition for a writ of habeas corpus

under 28 U.S.C. § 2254 (2003). 3 We deny Mr. Campbell’s application for

issuance of a COA.

      Mr. Campbell was found guilty by a jury in New Mexico state court of

second-degree murder and aggravated battery with a deadly weapon, for the

killing of Preston Gose. He was sentenced to sixteen years imprisonment for

second-degree murder (with a firearm enhancement) and four years for aggravated

battery with a deadly weapon (with a firearm enhancement), the sentences to run

concurrently. In support of his application, Mr. Campbell asserts a plethora of

grounds for relief in his habeas action: (1) trial court error for failing to instruct

the jury on voluntary manslaughter and defense of property; (2) trial court error in

declining to merge the aggravated battery and second-degree murder counts; (3)

trial court error for refusing to credit him for time served under house arrest; (4)

ineffective assistance of counsel; (5) prosecutorial misconduct; (6) jury

tampering; and (7) evidence tampering.

      “[U]ntil a COA has been issued federal courts of appeals lack jurisdiction


      1
       We liberally construe a pro se petition. Cummings v. Evans, 161 F.3d 610,
613 (10th Cir. 1998), cert. denied, 526 U.S. 1052 (1999).
      2
          See 28 U.S.C. § 2253(c)(1).
      3
          The district court denied Mr. Campbell a COA.

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to rule on the merits of appeals from habeas petitioners.” Miller-El v. Cockrell,

____ U.S. ____, 123 S. Ct. 1029, 1039 (2003). A COA can issue only “if the

applicant has made a substantial showing of the denial of a constitutional right.”

28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by demonstrating

that jurists of reason could disagree with the district court’s resolution of his

constitutional claims or that jurists could conclude the issues presented are

adequate to deserve encouragement to proceed further.” Miller-El, 123 S. Ct. at

1034. “The COA determination under § 2253(c) requires an overview of the

claims in the habeas petition and a general assessment of their merits.” Id. at

1039. “This threshold inquiry does not require full consideration of the factual or

legal bases adduced in support of the claims. In fact, the statute forbids it.” Id.

While an applicant for a COA is not required to prove the merits of his or her

case, he or she must demonstrate “something more than the absence of frivolity or

the existence of mere good faith on his or her part.” Id. at 1040 (internal

quotation marks and citation omitted).

      First, Mr. Campbell’s claim of inadequate jury instructions fails. “Habeas

proceedings may not be used to set aside a state conviction on the basis of

erroneous jury instructions unless the errors had the effect of rendering the trial

so fundamentally unfair as to cause a denial of a fair trial in the constitutional

sense . . . .” Brinlee v. Crisp, 608 F.2d 839, 854 (10th Cir. 1979), cert. denied,


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444 U.S. 1047 (1980). Evidence was presented at trial that Mr. Campbell beat his

victim with a pistol in an apartment, ordered the victim off of the property, and

then shot him in the head. Campbell v. Williams, No. 01-927 (D.N.M. June 10,

2002) (Magistrate Judge’s Proposed Findings and Recommended Disposition,

adopted by the district court August 13, 2002). The trial court determined a

reasonable person in Mr. Campbell’s position would have “cooled off” upon

seeing the victim follow his order to leave the property, and that defense of

property did not require deadly force. These conclusions did not deprive Mr.

Campbell of a constitutionally fair trial. See Tyler v. Nelson, 163 F.3d 1222 (10th

Cir. 1999).

      Second, Mr. Campbell argues the aggravated battery and the second-degree

murder charges should have merged. This is a double jeopardy argument,

alleging a violation of the Fifth Amendment. The New Mexico Court of Appeals

and the United States District Court addressed the argument, holding that Mr.

Campbell’s acts were not unitary, and thus double jeopardy did not bar the

indictment and conviction of these two distinct crimes. Campbell v. Williams,

No. 01-927 (D.N.M. June 10, 2002). Even if Mr. Campbell’s acts were all part of

one transaction, the convictions are not barred because they do not fit the double

jeopardy test of Blockburger v. United States, 284 U.S. 299, 304 (1932).

“[W]here the same act or transaction constitutes a violation of two distinct


                                         -4-
statutory provisions, the test to be applied to determine whether there are two

offenses or only one is whether each provision requires proof of an additional fact

which the other does not.” Id. Our review of New Mexico statutes defining

aggravated battery and second-degree murder satisfies us that each offense

contains an element not present in the other. Aggravated battery is defined as (1)

“unlawful touching or application of force,” (2) “to the person of another,” (3)

“with intent to injure.” N.M. Stat. Ann. § 30-3-5(A) (2002). Second-degree

murder is defined as (1) killing, (2) another human being, and (3) “in performing

the acts which cause the death he knows that such acts create a strong probability

of death or great bodily harm to that individual or another.” Id. § 30-2-1(B).

This third element of second-degree murder goes beyond the mere intent to injure

required for aggravated battery, and as such is a distinct element. The fact that

some evidence for these two crimes might overlap does not require double

jeopardy to bar one of the convictions. “If each [offense] requires proof of a fact

that the other does not, the Blockburger test is satisfied, notwithstanding a

substantial overlap in the proof offered to establish the crimes.” Tucker v.

Makowski, 883 F.2d 877, 879 (10th Cir. 1989) (quoting Iannelli v. United States,

420 U.S. 770, 785 n.17 (1975) (emphasis in original). Mr. Campbell’s acts satisfy

this test and his convictions for aggravated battery and second-degree murder are

not barred by double jeopardy.


                                         -5-
      Third, Mr. Campbell asserts he should have received credit for pre-sentence

time he remained at home wearing a monitoring device. This is a state law issue,

and he has made no showing it amounts to denial of a constitutional right.

      Fourth, Mr. Campbell claims he received ineffective assistance of counsel

because his attorney did not hire an expert to analyze and testify regarding blood

splatter, ballistic tests, and crime scene reconstruction. To prevail on this claim,

he must show (1) counsel’s performance was objectively deficient, and (2) the

deficiency prejudiced the defense, depriving him of a fair trial. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Mr. Campbell has not demonstrated the

outcome of the trial would have been different had an expert been hired. His

speculations do not satisfy Strickland.

      Fifth, Mr. Campbell argues a missing jury questionnaire and seating chart

afforded the prosecutor the ability to place jurors where he wanted —

“conservatives in front and liberals in back.” He also complains the prosecutor

should not have asked a defense expert witness how much she was being paid to

testify. “[P]rosecutorial misconduct in a state court violates a defendant’s right to

a fair trial only if the prosecutor’s actions ‘so infected the trial with unfairness as

to make the resulting conviction a denial of due process.’” Nguyen v. Reynolds,

131 F.3d 1340, 1358 (10th Cir. 1997) (quoting Donnelly v. DeChristoforo, 416

U.S. 637, 643 (1974)), cert. denied, 525 U.S. 852 (1998). These complaints, even


                                           -6-
if true, would not render the trial constitutionally unfair.

      Last, Mr. Campbell contends the trial court allowed evidence he claims was

fabricated. “State court rulings on the admissibility of evidence may not be

questioned in federal habeas proceedings unless they render the trial so

fundamentally unfair as to constitute a denial of federal constitutional rights.”

Brinlee, 608 F.2d at 850. His fabrication argument is pure speculation, and as

such, does not establish a fundamentally unfair trial.

      With these principles in mind, we have carefully reviewed the record of

these proceedings and the magistrate judge’s well-crafted order adopted by the

district court. We adopt its reasoning, conclude that reasonable jurists would not

debate its resolution of the constitutional claims presented, and deny the request

for a COA.



                                        Entered by the Court:

                                        TERRENCE L. O’BRIEN
                                        United States Circuit Judge




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