                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            SEP 2 1999
                                   TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 JESSE L. GARCIA,

                Petitioner - Appellant,

           v.                                              No. 99-2021
                                                   (D. Ct. No. CIV-97-130-M)
 TIM LEMASTER, Warden, and                                 (D.N.Mex.)
 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 the appellate record, this three-judge panel

has determined unanimously that oral argument would not be of material

assistance in 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.

       Petitioner-Appellant Jesse Garcia brought this 28 U.S.C. § 2254 petition for

a writ of habeas corpus challenging New Mexico’s revocation of his probation.



       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. This 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.
He raised three claims in the district court but failed to brief one of them. The

district court referred the case to a magistrate judge, who recommended denial of

the two briefed claims. After the magistrate issued his proposed findings and

recommendations, petitioner filed a request for supplemental briefing on the

omitted claim. The magistrate denied this request. The district court adopted the

magistrate’s proposed recommendations and denied petitioner’s objection to the

denial of supplemental briefing. Petitioner timely appealed after unsuccessfully

seeking a certificate of appealability from the district court. We deny a certificate

of appealability and dismiss the petition.

      Petitioner argues three grounds for relief in his appeal. First, he claims he

was denied effective assistance of counsel at his probation revocation hearing.

Second, he claims the reimposition of his suspended sentence of almost twenty

years for twenty separate misdemeanor counts of attempted breaking and entering

constitutes an excessive punishment in violation of the Eighth Amendment.

Third, he alleges he was denied due process by the magistrate’s refusal to allow

him, out of time, to brief his waived argument of bias on the part of the

sentencing judge.

      Garcia pled guilty to twenty counts of attempted breaking and entering and




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received twenty sentences of 364 days each, to run consecutively. The sentencing

judge suspended the sentence for a five year probationary period and required

petitioner to attend a drug rehabilitation program. Garcia left the rehabilitation

program without permission on May 25, 1995 because, he claimed, a severe

dental problem required him to seek treatment. On June 16, 1995, a probation

officer filed a report noting petitioner had left the program without authorization.

Authorities did not hear from petitioner again until he was arrested on December

22, 1995. After the arrest, the government initiated probation revocation

proceedings. The state district judge found eight specific probation violations,

including leaving the drug treatment program without permission, committing a

battery on a police officer, resisting arrest, failing to submit monthly reports to

his probation officer from June to December, 1995, and moving without notifying

his probation officer of his new residence. Given these probation violations, the

district judge reinstated the suspended sentence.

      Mr. Garcia’s ineffective assistance of counsel claim rests on his contention

that his counsel at the probation revocation proceeding failed to investigate the

circumstances of his “dental emergency” that caused him to leave his drug

treatment program. To prevail on his ineffective assistance claim, petitioner must

show that this failure to investigate his medical problem was objectively




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unreasonable and that the failure was prejudicial.    See Strickland v. Washington ,

466 U.S. 668, 688, 694 (1984). We need not evaluate the reasonableness of

counsel’s actions because the record makes clear that petitioner suffered no

prejudice from counsel’s alleged error. While medical evidence may have

confirmed Mr. Garcia’s reason for leaving his drug treatment program, it would

have done little to explain or mitigate the other violations. Notably, petitioner

offered no evidence that he tried to return to the drug treatment program after he

sought medical assistance for his tooth. On the contrary, he disappeared and did

not communicate with his probation officer for seven months. Additionally, he

resisted arrest and physically assaulted a police officer. Therefore, petitioner’s

first claim has no merit.

       Petitioner’s Eighth Amendment argument also fails. “The Eighth

Amendment requires that a sentence not be disproportionate to the severity of the

crime or involve unnecessary infliction of pain.”    United States v. Youngpeter ,

986 F.2d 349, 355 (10th Cir. 1993) (citing     Solem v. Helm , 463 U.S. 277, 284

(1983)). According to petitioner, a sentence of almost twenty years is

constitutionally disproportionate for a probation violation. This argument misses

the point. The sentence was imposed for petitioner’s original crimes. The trial

court decided to suspend the sentence, and petitioner’s probation violations




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simply reactivated it. Mr. Garcia’s sentence certainly fell within constitutional

bounds when we consider the large number of offenses to which he pled.

       Finally, Mr. Garcia argues that the magistrate’s denial of his request for

supplemental briefing on his claim of judicial bias violated his due process rights.

We disagree. The magistrate denied petitioner’s motion for supplemental briefing

because the motion came      after the magistrate had already issued his proposed

findings. The district court found the ruling neither clearly erroneous nor

contrary to law, see 28 U.S.C. § 636(b)(1), and affirmed it. We reach the same

conclusion. Effectively, petitioner waived his judicial bias claim by failing to

brief it in a timely manner. We find no due process violation stemming from

petitioner’s own oversight. Moreover, “[p]oints raised but not argued below

ordinarily will not be considered on appeal.”     Rademacher v. Colorado Ass’n of

Soil Conservation Dists. Med. Benefits Plan      , 11 F.3d 1567, 1571 (10th Cir. 1993).

Therefore, this argument provides petitioner with no ground for relief.

       We have carefully reviewed petitioner’s request for a certificate of

appealability, the district court order, and the entire record on appeal. That

review demonstrates that petitioner has not made a “substantial showing of the

denial of a constitutional right.”   See 28 U.S.C. § 2253(c)(2). Accordingly, we




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DENY petitioner’s request for a certificate of appealability and DISMISS this

appeal.

                                      ENTERED FOR THE COURT,



                                      Deanell Reece Tacha
                                      Circuit Judge




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