                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           DEC 6 1999
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    DARCI KAYLEEN PIERCE,

                Petitioner-Appellant,
                                                         No. 99-2219
    v.                                             (D.C. No. CIV-98-799-JC)
                                                          (D. N.M.)
    PENNY LUCERO, Warden, and
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.


                            ORDER AND JUDGMENT *


Before TACHA, McKAY, and MURPHY, 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      This order and judgment is not binding precedent, except under the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.
      Darci Kayleen Pierce was found guilty but mentally ill of first-degree

murder, kidnaping, and child abuse. She seeks a certificate of appealability

(COA) to appeal from the district court’s denial of her petition for relief under

28 U.S.C. § 2254. Under the Antiterrorism and Effective Death Penalty Act

of 1996, codified in relevant part at 28 U.S.C. § 2254(d),

      a state prisoner will be entitled to federal habeas corpus relief only if
      he can establish that a claim adjudicated by the state courts “resulted
      in a decision that was contrary to, or involved an unreasonable
      application of, clearly established Federal law, as determined by the
      Supreme Court of the United States,” 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.” Further, “a
      determination of a factual issue made by a State court shall be
      presumed to be correct.” 28 U.S.C. § 2254(e)(1). That presumption
      of correctness is rebuttable only “by clear and convincing evidence.”
      Id.

Boyd v. Ward, 179 F.3d 904, 911-12 (10th Cir. 1999) (quoting § 2254(d)). The

district court concluded that Pierce was not entitled to federal habeas relief

because she had not satisfied this standard, and denied her request for a COA.

In her application for a COA to this court, Pierce raises four issues she ascertains

satisfy the requirement of a substantial showing of the denial of a constitutional

right. See 28 U.S.C. § 2253(c)(2). They include claims that: (1) her rights were

violated when the state trial court failed to instruct the jury on a mens rea element

for felony murder; (2) her Sixth Amendment right to a fair and impartial jury was

violated when a juror intentionally failed to disclose material information that


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would have provided a valid basis for striking that juror for cause; and (3) her

Sixth Amendment right to effective assistance of counsel was denied when her

trial counsel failed to investigate the mental health history of her biological

family. These three issues were presented to the state courts either on direct

appeal or in state habeas proceedings. The state courts held evidentiary hearings

on the second and third claims and discussed the resolution of all three issues in

orders denying relief. The three issues also provided the basis for Pierce’s federal

habeas petition. In her application to this court, she adds an additional claim that

the federal district court violated her rights to due process by denying her federal

habeas petition without reviewing the entire trial transcript of the state court

proceedings.

      1. Failure to review the entire state court record. A review of the

entire trial transcript is at times necessary to resolve a habeas issue. See Aycox v.

Lytle, No. 98-2298, 1999 WL 1037603, at *2 (10th Cir. Nov. 16, 1999) (noting

that independent review of the record is necessary when a state court has not

articulated its reasoning for denying postconviction relief on the merits). When

the state court has articulated its reasoning and cited facts supporting its decision,

however, and depending on the nature of the habeas claim, the district court may

have enough facts before it to resolve an issue without reviewing the whole

record. See Guzman v. Williams , No. 98-2172, 1999 WL 430059, at **4


                                          -3-
(10th Cir. June 28, 1999) (holding that, in light of the record before it and the

specific nature of the claim, the federal district court did not err in dismissing

some habeas claims without reviewing the whole trial transcript) (unpublished).

The state courts in this case fully articulated their reasoning in denying relief on

each of the three issues for which Pierce alleged state-court error. The facts

supporting their decisions are set forth in the opinions and orders. Because the

federal district court could analyze Pierce’s claims on the facts presented, it did

not err in refusing to review the whole trial transcript.

       2. Failure to instruct on an essential element. The jury returned an

undifferentiated first-degree murder verdict without specifying whether it relied

on deliberate murder or felony murder as the basis for its verdict. The state

habeas court carefully reviewed the whole record, conducted the harmless error

analysis required by the admitted error of failing to instruct on a   mens rea

element for felony murder, and concluded that the record

       elaborates sufficient evidence of malice that the jury would have
       been justified convicting Ms. Pierce on either the deliberate murder
       or the felony murder instruction, especially considering the extensive
       testimony regarding Ms. Pierce’s state of mind. As intent was
       adequately proven, whether error was committed was inconsequential
       to the outcome.

Appellant’s Joint App., Vol. I at 389. The federal district court reexamined the

analysis and found it to be sound.      See Appellant’s Br., Ex. C at 7-9. In her

application for COA, Pierce alleges that the state habeas court failed to use the

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proper standard found in    Brecht v. Abrahamson , 507 U.S. 619, 622 (1993) (stating

that the habeas standard for harmless error is whether the error had “substantial

and injurious effect or influence in determining the jury’s verdict”), and that the

federal district court failed to recognize that the state court had used the wrong

standard. See Appellant’s Br. at 29. Contrary to this assertion, the federal district

court specifically applied the   Brecht standard, determined that the state court had,

in fact, also applied the standard, and concluded that under the undisputed facts as

established at trial, “there can be little question that Petitioner knew that her acts

created a strong possibility of great bodily harm to the victim” so that the error

was indeed harmless.     See id. , Ex. C at 8-9.

       Pierce argues that she presented enough evidence to support her insanity

defense that intent was a crucial issue and substantial questions existed whether

she in fact knew her acts caused a strong possibility of harm to the victim. She

also argues that the nature of the guilty but mentally ill verdict demonstrates that

the jury found the evidence of the mental illness persuasive. Pierce ignores the

fact, however, that by rejecting her insanity defense and finding her guilty, the

jury also found that she was not so mentally ill that she did not know what she

was doing or was not unaware of the difference between right and wrong.

Further, the jury found beyond a reasonable doubt when it convicted her of

kidnaping that Pierce took her victim by force or deception with the intent to take


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the victim’s baby from her.     See Appellant’s Joint App., Vol. I at 384. It would

be absolutely inconsistent to find beyond a reasonable doubt that Pierce was sane

enough to purposefully kidnap the victim with the specific intent to take the

victim’s baby, but that she was not sane enough to know that strangling the victim

and cutting her open to get the baby was likely to result in great bodily harm.

Having failed to show that the state court’s harmless error analysis was

unreasonable or contrary to federal law, Pierce was not entitled to federal habeas

relief on this issue and has also failed to make a substantial showing of the denial

of a constitutional right.

       3. Failure to grant new trial due to alleged juror bias. Pierce did not

raise her juror bias claim in her state habeas petition,    see Appellant’s Joint App.,

Vol. I at 388, 395, but she did directly appeal on that ground,     see State v. Pierce ,

788 P.2d 352, 354-56 (N.M. 1990). In response to the trial court’s voir dire

question, “have you ever had to be treated by a psychiatrist or psychologist for

any reason?”, the juror answered, “Not that I remember, your Honor. . . . [A]t one

time, I had . . . kind of a dizzy spell, and they thought that I needed a psychiatrist,

and finally a doctor got ahold of me and took care of me. So I didn’t have to

have a psychiatrist.”    Id. at 354. Pierce requested a new trial after discovering

that the juror had apparently told a reporter contradictory information after the

trial. The trial court held an evidentiary hearing, and the juror admitted that he


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had experienced a traumatic event as a child that resulted in his hospitalization

for depression. He maintained, however, that he had never been treated by a

psychiatrist at the hospital, and that his doctors were dealing with his loss of

speech and not with his mind during treatment.      See id. The trial court concluded

that Pierce had failed to establish either an intentional material misrepresentation

or actual prejudice and denied the motion for new trial.     See id. On appeal, the

New Mexico Supreme Court held that, assuming the juror’s voir dire statements

that he had not personally received psychological counseling were intentional

misrepresentations,

       his statements were not germane to his capacity to sit as an impartial
       juror; . . . [that Pierce] has not shown how she was actually
       prejudiced by the juror’s sitting on the jury; . . . [that Pierce] was not
       entitled as a matter of law to have exercised a peremptory challenge
       to strike the juror from sitting on the jury; and [that] the trial court
       soundly exercised its discretion in denying the motion for new trial

based on the juror’s failure to disclose.   Id. at 356. The court also noted that it

was not clear whether, had Pierce known the juror had been treated for depression

in a mental hospital, she would have regarded him as an unfavorable juror at the

time. See id.

       In her federal habeas petition, Pierce alleged that the trial court’s factual

finding that she had not shown that the juror intentionally and dishonestly

concealed a material fact was not fairly supported by the record.     See Appellant’s

Br., Ex. C at 11-12. Contrary to Pierce’s allegations, the federal district court did

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not analyze only a single response by the juror in determining that the trial court’s

finding was supported in the record. Referring to parts of the record that quoted

the juror’s testimony and to the Supreme Court opinion that also quoted

testimony, the federal district court found that “[p]etitioner’s contention that the

trial court’s findings are unsupported by the record is itself unsupported,” and

concluded that Pierce had failed to show that the “trial court’s findings are based

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

it.” Id. at 12.

       In her application for COA, Pierce further argues that the juror’s post-trial

statements at the evidentiary hearing that he could “see the devil” in her called

into question his ability to be an impartial juror, and both the state and federal

courts erred in not recognizing the implications of this testimony. Appellant’s Br.

at 43. Pierce fails to connect the juror’s alleged dishonesty in answering voir dire

questions with this post-trial statement. The New Mexico Supreme Court noted

that at the hearing on her motion for new trial, Pierce did not raise this post-trial

remark as an issue warranting new trial.    See Pierce , 788 P.2d at 356 . The court

also noted that

       the juror testified that he arrived at his verdict on the basis of the
       evidence presented at trial, and not on the basis of . . . his ability to
       “see the devil in the Appellant.” When asked by defense counsel if
       his experience with former mental patients had given him “special
       insights as to whether [Appellant] was insane,” the juror answered,


                                           -8-
       “No, no. Like I said, at that time when I was sitting as a juror, it did
       not even enter -- it didn’t enter my mind at all.”

Id. Pierce does not explain why, in light of this undisputed testimony and the

accompanying analysis, the state court’s conclusions were contrary to or involved

an unreasonable application of clearly established federal law, or that there was

an unreasonable determination of the facts in light of the evidence. Thus, the

federal district court properly held that federal habeas relief should not be granted

and a COA also should not issue on this ground.

       4. Ineffective assistance of counsel. The district court’s denial of relief

based on Pierce’s ineffective assistance of counsel claim rested on an undisputed

fact set forth in the state court habeas decision after that court held an evidentiary

hearing on the issue. The state court ruled that because none of the six mental

health experts employed by the state or the defense demanded or requested

biological background information, counsel was not deficient in failing to attempt

to locate Pierce’s biological mother to inquire whether there was any family

history of mental illness.   See Appellant’s Joint App., Vol. I at 392. The court

alternately concluded that, even if counsel was deficient in not conducting such

an investigation, the testimony regarding Pierce’s mental state was so extensive

“there is little probability that had the biological mother been located the outcome

of the trial would have been different.”   Id. Although Pierce now alleges that the

mental health experts could have diagnosed a specific disorder more readily and

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that at least one of her experts would have changed her testimony to include an

opinion that Pierce was insane at the time of the murder, the record reflects that at

least one of her four mental experts   did testify at trial that she met the New

Mexico standard for a finding of not guilty by reason of insanity.     See id. at 380.

Both state experts apparently testified at the evidentiary hearing that Pierce’s

genetic history discovered after the trial would not be regarded as of any great

importance and that it did not change their opinion regarding Pierce’s mental

evaluation--that she suffered from certain mental ailments, but was not insane

at the time she committed the homicide.      See id.

       As the federal district court pointed out, Pierce has not shown in her federal

habeas petition that the state court’s adjudication of this issue is unreasonable or

contrary to clearly established law or is based on an unreasonable determination

of facts. She simply asks this court to reanalyze the facts and law and come

up with a different result. She has failed to establish the right to a writ under

28 U.S.C. § 2254(d).    See Appellant’s Br., Ex. C at 7, 15.    Consequently, she also

has failed to make a substantial showing of the denial of a constitutional right on

this issue.

       Pierce’s application for a COA is DENIED and the appeal is DISMISSED.

The mandate shall issue forthwith.


                                                        Entered for the Court

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       Michael R. Murphy
       Circuit Judge




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