                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                October 29, 2009
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 PAUL PAYNE,

       Petitioner - Appellant,
                                                        No. 09-2089
 v.                                               (D.C. No. 07-CV-01017)
                                                         (D.N.M.)
 TIM LEMASTER, Warden;
 ATTORNEY GENERAL OF THE
 STATE OF NEW MEXICO,

       Respondents - Appellees.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


      Petitioner-Appellant Paul Payne, an inmate appearing pro se, seeks a

certificate of appealability (“COA”) allowing him to appeal the district court’s

order dismissing his petition for a writ of habeas corpus with prejudice. 28

U.S.C. § 2254. To obtain a COA, Mr. Payne must make “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Slack v.

McDaniel, 529 U.S. 473, 483-84 (2000). We conclude that he has not made the

requisite showing, therefore we deny a COA and dismiss the appeal.

      In a June 2002 bench trial, Mr. Payne was convicted of first-degree murder,

conspiracy, and possession of a deadly weapon by a prisoner. 1 R. at 64. All
three charges stemmed from the June 1999 murder of a fellow inmate at the Lea

County Correctional Facility. 2 R. at 13-14. He was sentenced to life

imprisonment plus nine additional years and five years’ parole, to run

consecutively to a previous sentence for escape from prison. 1 R. at 64-65. The

New Mexico Supreme Court affirmed his conviction on direct appeal. 1 R. at

135-50. A state district court denied his motion to withdraw his waiver of a jury

trial, as well as his state petition for habeas corpus. 1 R. at 395-98. He sought

certiorari on the state habeas petition but it was denied. 1 R. at 430.

      In his federal habeas petition, Mr. Payne listed fourteen claims forming the

basis for relief. 1 R. at 9-20. The magistrate judge grouped these claims into five

areas: (1) waiver of the right to a jury trial due to prosecutorial misconduct, (2)

breach of the jury waiver agreement, (3) use of an unavailable witness’s

preliminary hearing testimony in violation of the confrontation clause, (4)

ineffective assistance of counsel, and (5) non-cognizable claims. 2 R. at 17, 21,

34, 44, 59. 1 The magistrate judge recommended that Mr. Payne’s § 2254 petition

be denied. 2 R. at 61.

      Mr. Payne objected to the magistrate judge’s proposed findings and

recommended disposition. 2 R. at 75-109. He claimed that the magistrate judge

erred (1) in applying the deferential standards of review under 28 U.S.C. §


      1
      The page numbers refer to the record’s page numbers, not to the page
numbers of the magistrate judge’s memorandum.

                                         -2-
2254(d) rather than de novo review; (2) in not considering exculpatory facts; (3)

in refusing to hold an evidentiary hearing; (4) in analyzing the waiver of a jury

trial claim; (5) in analyzing the confrontation clause claim; (6) in analyzing the

ineffective assistance of counsel claim; and (7) in concluding that the remaining

claims were non-cognizable. 2 R. at 75-109. The district judge overruled Mr.

Payne’s objections. 2 R. at 132-34.

      In seeking a COA, Mr. Payne relies upon those objections. Application for

COA at 2; Aplt. Br. at 2-4. On appeal, Mr. Payne’s restyled brief raises only two

issues that he did not raise in his original § 2254 petition: the applicability of

deferential standards of review and the district court’s refusal to hold an

evidentiary hearing. In conducting our review of claims “adjudicated on the

merits in State court proceedings,” we must uphold the State court decision unless

it “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.” § 2254(d); see Aycox v. Lytle,

196 F.3d 1174, 1177 (10th Cir. 1999).

      Mr. Payne argues that this deferential standard does not apply because the

state district court treated his habeas corpus petition as a successive petition and

therefore it was not “adjudicated on the merits,” as § 2254(d) requires. Aplt. Br.

at 7-8. Mr. Payne’s characterization of the state court proceedings is not correct.

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Although the state district judge disposed of Mr. Payne’s habeas petition in a

brief letter ruling, he recognized the ineffective assistance claims and concluded

that “Petitioner was ably represented by counsel.” 1 R. at 398. The state district

judge never referred to Mr. Payne’s petition as “successive.” Because state courts

adjudicated Mr. Payne’s claims on the merits, the deferential standard applies.

      An independent review of Mr. Payne’s federal habeas petition, his appellate

brief, and the record shows that reasonable jurists would not debate the district

court’s assessment of his constitutional claims. As discussed by the magistrate

judge, the prosecutor’s conduct during voir dire was unobjectionable and did not

cause Mr. Payne to waive his right to a jury trial. 2 R. at 17-21. The State of

New Mexico did not breach its promise to Mr. Payne in exchange for his waiver

of a jury trial. The record supports the state district judge’s conclusion that the

State only promised to attempt to transfer Mr. Payne to a prison in a state other

than Utah or New Mexico. 1 R. 395-96. It also supports that the State made good

on its promise to seek a transfer, an attempt which ultimately failed. 1 R. 396; 2

R. at 25-33. The trial court’s admission of a police officer’s preliminary hearing

testimony did not violate Mr. Payne’s right to confront the witnesses against him.

2 R. at 34-44. Supreme Court precedent has established that such an admission

does not violate the confrontation clause if the witness was unavailable and the

defendant had a prior opportunity to cross-examine the witness. See Crawford v.

Washington, 541 U.S. 36, 59, 68 (2004); Ohio v. Roberts, 448 U.S. 56, 73-74

                                         -4-
(1980). The witness was unavailable for trial (because of brain damage from a

motorcycle accident) and the defendant had a prior opportunity to cross-examine

him at the preliminary hearing. 2 R. at 34, 40. Regarding Mr. Payne’s several

claims of ineffective assistance of counsel, the district court applied the correct

standard and did not err in finding a lack of deficient representation or prejudice.

2 R. at 44-58. Lastly, Mr. Payne’s other claims do not raise any cognizable

violations of federal law. 2 R. at 59-61. Because the record establishes that Mr.

Payne’s claims are without merit, he was not entitled to an evidentiary hearing.

Schriro v. Landrigan, 550 U.S. 465, 474 (2007).

      We DENY a COA and DISMISS the appeal.


                                               Entered for the Court


                                               Paul J. Kelly, Jr.
                                               Circuit Judge




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