                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          OCT 15 2004
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    CHERI SMITH,

                Petitioner-Appellant,

    v.                                                   No. 03-2270
                                               (D.C. No. CIV-03-142 WPJ/RHS)
    WILLIAM SNODGRASS, New                                (D. N.M.)
    Mexico Women’s Correctional
    Facility; MARK RADOSEVICH,
    Director, New Mexico Adult Probation
    & Parole; PATRICIA MADRID,
    Attorney General, State of New
    Mexico,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before KELLY , HARTZ , and TYMKOVICH , 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      This order and judgment is not binding precedent, except under the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.
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.

       Petitioner Cheri Smith appeals from the denial of habeas relief sought as to

both an initial state felony conviction and subsequent state proceedings to revoke

the probation she was granted with respect to the resultant sentence. The district

court held that the claims challenging the conviction were time-barred and that

petitioner had not established any right to relief with regard to the revocation

proceedings. The district court then granted a certificate of appealability limited

to petitioner’s due process challenge to the revocation proceedings. For reasons

stated below, we affirm the denial of the due process claim and deny petitioner’s

request to expand the certificate of appealability to include all other claims raised

in the petition.

       Petitioner was convicted in New Mexico state court of felony fraud and

embezzlement and the misdemeanor of acting as an insurance consultant without a

licence. She received consecutive sentences of three years for each felony and six

months for the misdemeanor. All but eighteen months was suspended, however,

and she was placed on five years’ probation with several conditions, including

payment of $7,901.40 in restitution, execution of a promissory note to guarantee

the payment, and provision of documentation from any future employer indicating

notification of her embezzlement conviction.


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      In a decision issued November 17, 2000, the New Mexico Court of Appeals

vacated petitioner’s misdemeanor conviction, but affirmed the judgment in all

other respects. Petitioner did not seek review in the New Mexico Supreme Court

by the December 7, 2000 deadline,   see N.M. R. App. P. 12-502(B), and the court

of appeals’ mandate subsequently issued on February 15, 2001.

      By then petitioner had gained her release under the probation conditions

noted above. Pursuant to an interstate compact, she was allowed to transfer her

probation to Arizona, where she found employment. Since that time petitioner’s

compliance with her probation conditions has been a persistent issue, prompting

(a) a revised probation order setting out more specific terms regarding restitution

payment; (b) several motions by the State to revoke petitioner’s probation and a

bench warrant based on her failure to appear at a hearing; (c) several motions by

petitioner to dismiss the proceedings and quash the bench warrant; and (d) efforts

by petitioner to obtain appellate and mandamus relief in the state courts.

      While the revocation proceedings continued without resolution, petitioner

commenced this action in the federal district court for New Mexico on

January 30, 2003, raising a host of complaints about the revocation proceedings

and her underlying criminal prosecution. Adopting the magistrate judge’s

recommended analysis, the district court held that petitioner’s claims regarding




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her convictions were time-barred under 28 U.S.C. § 2244(d), and then rejected her

objections to the revocation proceedings for various reasons.

      As for petitioner’s motion to expand the certificate of appealability beyond

the due process claim previously certified for appeal, we have considered the

pertinent materials, concluded “that reasonable jurists would not find the district

court’s disposition of the remaining claims wrong or even debatable,” and,

therefore, deny the motion.    Carter v. Ward , 347 F.3d 860, 865 (10 th Cir. 2003)

(applying standard from   Slack v. McDaniel , 529 U.S. 473, 484 (2000)). Thus, our

appellate review is limited to the disposition of petitioner’s due process challenge

to her probation revocation proceedings.

      Notwithstanding the unitary reference by the district court in the certificate

of appealability, there is, in fact, no single “due process” claim designated in the

habeas petition. Rather, a number of objections that could fall under that general

rubric are scattered throughout the petition’s claims regarding the revocation

proceedings. Of these, petitioner argues on appeal that the State has deprived her

of certain procedural rights constitutionally guaranteed at revocation proceedings;

that the State has also failed to comply with specific procedural provisions of the

interstate compact that authorized the transfer of her probation to Arizona; and

that she should have been afforded counsel as a matter of due process. None of

these contentions has merit.


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      Petitioner claims that she was not afforded the prompt preliminary hearing

“at or reasonably near the place of the alleged [probation] violation,” to which she

was entitled under Morrissey v. Brewer , 408 U.S. 471, 485 (1972), and        Gagnon v.

Scarpelli , 411 U.S. 778, 782 (1973) (holding probation revocation procedure must

comply with “conditions specified in     Morrissey v. Brewer ” for parole revocation).

But this preliminary-hearing requirement is inapposite here, where the State

pursued revocation while permitting petitioner to remain at liberty. This point

was clarified some time ago:

      Gagnon v. Scarpelli , . . . and the decision on which it is based,
      Morrissey v. Brewer , . . . , prescribe a two-stage procedure for parole
      and probation revocation: a preliminary hearing on whether there is
      probable cause to believe the terms of release were violated, and a
      subsequent final hearing on the merits. In those cases, however, the
      respondents were held in custody until the revocation hearing. The
      reason for requiring a preliminary hearing was that the conditional
      liberty of a probationer or parolee, like the more complete liberty of
      others, cannot constitutionally be infringed without probable cause.
      This reason for requiring a preliminary hearing is not present when,
      as here, the probationer is not held in custody to await the revocation
      hearing.

United States v. Sciuto , 531 F.2d 842, 846 (7 th Cir. 1976) (following      United

States v. Strada , 503 F.2d 1081, 1084 (8 th Cir. 1974)); see also McDonald v.

N.M. Parole Bd. , 955 F.2d 631, 633-34 (10       th Cir. 1991) (holding   Morrissey’s

“hearing requirements and time limitations must be adhered to only after the

parolee is taken into custody as a parole violator[;] . . . [u]ntil he is, he has not

been deprived of a liberty interest”).

                                           -5-
       Petitioner also complains of the time that has passed since the State first

sought to revoke her probation in September 2001.       Morrissey holds that a final

revocation hearing, i.e., one that “lead[s] to a final evaluation of any contested

relevant facts and consideration of whether the facts as determined warrant

revocation,” 408 U.S. at 488, “must be tendered within a reasonable time,”        id.

(noting “lapse of two months . . . would not appear to be unreasonable”). Again,

however, the deprivation of liberty prompting the     Morrissey Court to impose this

time constraint (and the event triggering calculation of the length of delay) was

the fact that “the parolee is taken into custody.”   Id.; see Moody v. Daggett,    429

U.S. 78, 87 (1976) (“[I]n holding [in     Morrissey ] that the revocation hearing must

be tendered within a reasonable time after the parolee is taken into custody, . . .

we established execution of the [revocation] warrant and custody under that

warrant as the operative event triggering any loss of liberty attendant upon the

parole revocation.” (quotation omitted)). Hence, this aspect of     Morrissey is

distinguishable here for the same reason that its preliminary-hearing requirement

is inapposite.

       That is not to say due process places no temporal constraints whatsoever on

revocation proceedings conducted without taking the probationer into custody.

Thus, for example, extended unjustified delay in executing a revocation warrant,

which by definition precedes     Morrissey-Gagnon custody concerns, may implicate


                                             -6-
due process if the delay is demonstrably prejudicial to the violator’s ability to

defend. See United States v. Tippens , 39 F.3d 88, 90 (5 th Cir. 1994); United

States v. Taylor , 931 F.2d 842, 848 (11 th Cir. 1991). We need not delve deeply

into this question, however, as petitioner has not demonstrated any prejudice of

constitutional significance. This is not a case of process withheld or postponed

for some extended period; on the contrary, there has been a surfeit of process,

including many motions and pleadings from petitioner, that has delayed resolution

of the matter since the State first moved for revocation in 2001. Moreover, the

State’s efforts to revoke probation do not stem from a single incident receding

into an unrecoverable past; the State has repeatedly moved for revocation based

on, among other things, petitioner’s continuing failure to make restitution.

       Petitioner’s claim that the State has violated procedures specified in the

interstate compact authorizing her transfer to Arizona are meritless. The relevant

sections of the compact simply acknowledge the due process requirement of a

preliminary revocation hearing recognized in         Morrissey and Gagnon and, given

the interstate-transfer context, provide for it in the receiving state.         Interstate

Comm’n for Adult Offender Supervision          Rules , 1 § 5.108 (2004) (formerly     Parole

and Prob. Compact Adm’r’s Ass’n          Rules , §§ 5-102, 5-104). For reasons already

explained, this requirement is inapplicable here.


1
       These Rules may be found at        www.adultcompact.org.           (March 12, 2004).

                                               -7-
      Finally, petitioner claims that she is entitled to appointment of counsel in

the revocation proceedings pursuant to    Gagnon , which recognized that there are

“certain cases in which fundamental fairness–the touchstone of due process–will

require that the State provide at its expense counsel for indigent probationers or

parolees.” 411 U.S. at 790.    Gagnon noted, however, that the determination

whether counsel is necessary is addressed in the first instance to the “sound

discretion” of the State, and cautioned that “the presence and participation of

counsel will probably be both undesirable and constitutionally unnecessary in

most revocation hearings.”    Id. An important consideration is “whether the

probationer appears to be capable of speaking effectively for himself.”   Id. 791.

Petitioner has not, consistent with these principles, demonstrated that fundamental

fairness requires the State to provide her with appointed counsel to assist with her

thus-far effective opposition to its effort to revoke her probation.

      Petitioner’s motion to expand the certificate of appealability to include all

issues raised in her habeas petition is DENIED. The judgment of the district

court denying the petition is AFFIRMED. Petitioner’s February 19, 2004, motion

for an order directing the State to expand the record, April 13, 2004, renewed

motion for an order to show cause why her habeas petition should not be granted,

and April 27, 2004, renewed motion to hold the New Mexico Attorney General




                                           -8-
and its counsel of record in contempt are DENIED. Petitioner’s July 6, 2004,

motion to file a supplemental appendix is GRANTED.



                                                  Entered for the Court



                                                  Paul J. Kelly, Jr.
                                                  Circuit Judge




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