                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           AUG 27 2001
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    EDDIE PEREZ,

                  Petitioner-Appellant,

    v.                                                    No. 00-2487
                                                    (D.C. No. CIV-98-574-M)
    TIM LEMASTER, Warden,                                  (D. N.M.)
    New Mexico State Penitentiary;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                  Respondents-Appellees.


                              ORDER AND JUDGMENT          *




Before HENRY , ANDERSON , 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      This order and judgment is not binding precedent, except under the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.
      Petitioner seeks review of the denial of his petition for writ of habeas

corpus brought pursuant to 28 U.S.C. § 2254. We earlier granted a certificate of

appealability directing appellee to respond to the issues raised. We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.



                                           I

      In 1995, petitioner was convicted in state court, following his guilty plea,

to two counts of aggravated burglary. He was sentenced to nine years’

incarceration on each count, to run concurrently, with all but 364 days of the

sentence suspended. Five years’ probation was also ordered, and petitioner was

released on probation in August of 1996. Approximately a month later he was

arrested and charged with receiving stolen property. The state moved to revoke

probation, alleging that petitioner had violated the probation condition that he not

violate any laws or ordinances of the state or municipalities of New Mexico or

any other state or federal laws.

      In June of 1997, the trial court conducted a probation revocation hearing,

following which probation was revoked and the original sentence reimposed.

The state then entered a nolle prosequi on the criminal case, stating that because

petitioner had been sentenced based on his probation revocation, it was “in the

best interest of justice” not to further prosecute the receipt of stolen property


                                          -2-
charge. R., Vol. II, at 170. The New Mexico Court of Appeals affirmed the trial

court’s probation revocation order, and the New Mexico Supreme Court denied

certiorari.

       Proceeding pro se in federal district court, petitioner alleged that his

conviction was based on an “unlawfully obtained” guilty plea, the prosecution

failed to disclose favorable evidence because there was never any intent to

prosecute the receipt charge , and he received two sentences for the same crime

(first five years’ probation, then, following revocation, a nine-year sentence).      The

district court subsequently appointed counsel, whose memorandum brief rephrased

the issues as whether petitioner was denied due process because his guilty plea

was invalidly obtained and because the trial court allowed the state to proceed first

on the probation revocation charge (with a lesser burden of proof) and then to

dismiss the criminal charge once probation was revoked,          and whether his right to

be free from double jeopardy was violated when the trial court imposed a sentence

of incarceration after the revocation hearing.

       The magistrate judge recommended denying the petition, determining that

the state record reflected that petitioner’s guilty plea was voluntary, that the

alleged failure to disclose favorable evidence was conclusory,        that conviction of

a subsequent offense was not necessary under New Mexico law to support




                                             -3-
probation revocation,    and that under state law, the trial judge had discretion to

order service of the original sentence.

       In his objections to the magistrate judge’s report, petitioner alleged, for the

first time, that the state trial judge’s findings “were inadequate to support a

finding by a preponderance of the evidence” that petitioner had committed the

offense of receiving stolen property. R., Vol. I, doc. 35, at 2. Petitioner further

contended that the state violated his due process rights by not establishing each

element of the offense of receiving stolen property by a preponderance of the

evidence. The district court adopted the magistrate judge’s recommendation and

denied the petition.

       In his opening brief on appeal, petitioner argues that the state trial and

appellate decisions resulted from unreasonable factual determinations, and that the

state courts unreasonably applied the governing legal principles to the facts.

Appellant’s Br. at 12.   See 28 U.S.C. § 2254(d)(1). Petitioner contends that the

merits of his procedural due process claim are governed by      Morrissey v. Brewer ,

408 U.S. 471, 487-89 (1972) (parole revocation) and      Gagnon v. Scarpelli ,

411 U.S. 778, 782 (1973) (extending     Morrissey ’s requirements to probation

revocation) and that his substantive due process claims are governed by      Douglas v.

Buder , 412 U.S. 430, 431-32 (1973).




                                            -4-
      Specifically, petitioner attacks the factual statement in the trial court’s

judgment revoking parole that petitioner had admitted violating the terms and

conditions of his probation as erroneous, claiming he had consistently    denied

violating his probation. Petitioner also attacks the state court of appeals’ decision

as containing numerous factual inaccuracies. He reiterates his contention that the

state was obligated, as part of the revocation proceeding, to establish the elements

of receiving stolen property and to prove each element by a preponderance of the

evidence.

      In response, the state contends that the New Mexico Court of Appeals relied

on the factual statements in petitioner’s docketing statement (prepared by

petitioner’s probation revocation attorney) filed in that court, which appellate

counsel, who was different, did not challenge. The state further maintains that the

revocation hearing complied with the requirements of      Morrissey and Gagnon and

that New Mexico law requires only reasonable certainty to establish a probation

violation such as would satisfy the conscience of the court as to the truth of the

violation.

      In his reply brief, petitioner for the first time challenges the summary

calendar procedures employed by the New Mexico Court of Appeals as

unreasonable because there is no transcript of proceedings available in cases

assigned to that calendar. He contends that state appellate counsel “had no way to


                                            -5-
determine whether the facts in the docketing statement were correct.” Appellant’s

Reply Br. at 4. The lack of access to trial tapes or transcripts allegedly “raises

serious due process concerns insofar as it requires the parties to argue and the

court to decide sufficiency-of-the-evidence claims without examination of the

evidence presented.” Id. at 5. Although claiming that the efforts of trial and

appellate counsel were hindered, petitioner does not allege ineffectiveness of

either attorney.



                                              II

       This case is governed by the provisions of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA). Under AEDPA, when a claim has been

adjudicated in state court, a petitioner may obtain federal habeas corpus relief only

if the state court decision “‘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.’”   Walker v.

Gibson , 228 F.3d 1217, 1225 (10th Cir. 2000) (quoting 28 U.S.C. § 2254(d)(1),

(2)), cert. denied , 121 S.Ct. 2560 (2001)). The writ may be granted only if the

state court’s decision reached a conclusion opposite to the Supreme Court’s on a

legal question, decided the case differently than the Supreme Court had on


                                             -6-
materially indistinguishable facts, or unreasonably applied governing legal

principles to the facts of petitioner’s case.     Id. State court factual findings are

presumptively correct, and petitioner bears the burden of rebutting that

presumption by clear and convincing evidence.          Id.

       At the outset we outline the issues properly before us and those which are

not. Petitioner did not pursue on appeal his challenges to his guilty plea to the

underlying aggravated robbery or his claim that his sentence following probation

violated double jeopardy principles. These issues, then, are waived.         See

Pallottino v. City of Rio Rancho     , 31 F.3d 1023, 1026 n.2 (10th Cir. 1994) (issues

not briefed on appeal deemed waived). In addition, we decline to consider

petitioner’s challenge to the summary calendar procedures employed by the

New Mexico Court of Appeals. Petitioner’s state appellate counsel did not

complain of the procedure, nor was the issue raised either in district court or in

petitioner’s opening brief. This issue, too, is waived.      See Coleman v. B-G

Maintenance Mgt. of Colo., Inc.      , 108 F.3d 1199, 1205 (10th Cir. 1997) (not

sufficient to mention issue in reply brief; issues not raised in opening brief deemed

waived). What remains is petitioner’s claim that his federal due process rights

were violated by the revocation of his probation.




                                                -7-
                                           III

       The facts surrounding petitioner’s arrest for receiving stolen property are

taken from his briefs, except where the revocation hearing testimony indicates

otherwise. At about 12:20 a.m. on September 3 or 4, 1996, police were called to a

residential neighborhood to investigate a resident’s complaint of two males

looking around the resident’s house and that of a neighbor. The males had

knocked on the resident’s door asking for someone who did not live there.

Petitioner admitted driving a tan pickup truck to the neighborhood; the pickup was

ultimately found to contain cash, a stolen VCR and stereo (or CD player), and a

photograph of the burglary victim’s daughter.    1



       Petitioner testified he had spent the day with his niece Gina and her

boyfriend and that at some point late in the evening a friend of Gina’s, Albert

Flores, 2 asked petitioner for a ride home. Petitioner borrowed Gina’s pickup, and

when he entered the pickup, he claims that Flores, the VCR, and the stereo were

already in the cab.   Flores directed petitioner to drive to a residential neighborhood


1
      The stolen property had ben taken from a residence about four blocks away
sometime between August 29 and September 3, while that resident was out of
town.
2
       In his opening brief petitioner describes Flores, a juvenile, as Gina’s
boyfriend. Other references, including petitioner’s testimony, describe Flores as a
friend who showed up at Gina’s sometime during the early hours of September 4.
We note this minor discrepancy because it is one of many equally inconsequential
factual inaccuracies that have plagued this case.

                                           -8-
because he, Flores, was looking for a friend.     Id. According to police Sergeant

Sosa, two neighbors reported petitioner and Flores looking around their houses.

Petitioner testified that he and Flores had knocked at one house and were on their

way to another when the police arrived.     Sergeant Sosa also testified that one

resident (Ms. Oliver) had described the males’ activities as “rummaging around”

her neighbor’s house, meaning going around the bushes and moving garden hoses.

Appellee’s Br. at 12. Ms. Oliver also reported that petitioner and Flores were

looking around her house until they got to her window and saw her watching them

(while she was on the phone talking to the police).    Id. Petitioner and Flores were

questioned at the scene, and petitioner was arrested on an unrelated warrant.

Appellant’s Br. at 8. Petitioner was subsequently bound over for trial on the

criminal charge of receiving stolen property. That trial was scheduled to follow

the revocation hearing, at which probation was revoked.



                                            IV

       In attempting to meet the AEDPA requirements, petitioner claims the

decision of the New Mexico Court of Appeals was based on numerous factual

inaccuracies and that the docketing statement filed by trial counsel differed from




                                            -9-
the revocation hearing tapes.    3
                                     Petitioner contends that the docketing statement

stated that “[f]acts were developed at the revocation hearing showing that

Mr. Flores admitted he stole the property in the pickup and reported that

[petitioner] did not know the property was stolen and was not involved in the

theft,” when in reality, “Flores did not testify at the revocation hearing,” and

“[no] witnesses testified about his admissions or statements.” Appellant’s Reply

Br. at 4. Our review of the state court docketing statement reflects that evidence

surrounding the Flores admission was explored at petitioner’s preliminary hearing,

not the revocation proceeding.        See R., Vol. II, at 159-60. Moreover, contrary to

petitioner’s claim, his own attorney stated at the revocation hearing that Flores had

admitted to the charges which petitioner was alleged to have committed. These

minor discrepancies do not rise to the level of an “unreasonable determination

of the facts in light of the evidence presented in the State Court proceeding.”

28 U.S.C. § 2254(d)(2).

       Petitioner does point to the trial judge’s statement in the revocation

judgment that petitioner “admitted he has violated the terms and conditions of the

probation heretofore entered,” R., Vol. II, at 145, claiming, as he did in the


3
       For example, Gina is listed in the docketing statement as petitioner’s sister;
she is in fact his niece. Flores supposedly asked for a ride to find a friend,
whereas the docketing statement lists this person as Flores’ cousin. The
docketing statement also listed Sergeant Sosa as the arresting officer when in fact
he was not.

                                              -10-
New Mexico Court of Appeals, that he has vigorously     denied having any

connection to the stolen property. However, the state court of appeals did not rely

on this alleged admission in concluding that petitioner had failed to persuade that

court that “the evidence was insufficient to support a revocation of his probation

on the grounds that he committed the crime of receiving stolen property.”

R., Vol. I, doc. 1, ex. 2.

       Moreover, we note that the statement that petitioner had admitted to

violating probation does not refer to any particular condition, such as violating

state or federal laws. We also note that petitioner did admit to violating the

probation condition forbidding the consumption of alcohol, knowing he was not

allowed to do so.   See R., Vol. II, at 117, ¶ 11 (“You shall not use or consume

alcoholic beverages . . . .”). At the revocation hearing he testified that on the day

of his arrest he “drank a lot of beer.” Thus we cannot agree that the statement

regarding an admitted probation violation is even factually incorrect.



                                           V

       The crux of petitioner’s legal argument, then, is that the state was obligated

to, but did not, prove the elements of the criminal charge of receiving stolen

property by a preponderance of the evidence, an issue first raised in his objections

to the magistrate’s report and recommendation.


                                          -11-
      In support of this claim, petitioner cites New Mexico cases describing the

burden of proof needed in a criminal context to establish receipt of stolen

property. See , e.g. , State v. Sizemore , 858 P.2d 420, 423 (N.M. Ct. App. 1993).

He further argued, as he does on appeal, for the general proposition that probation

or parole revocation “based on commission of a crime requires proof by a

preponderance of the evidence of each element of that crime.”

      The cases cited by petitioner are simply inapposite.    United States v.

Stephenson , 928 F.2d 728 (6th Cir. 1991) and     United States v. Myers ,

896 F. Supp. 1029 (D. Or. 1995) involved revocation of supervised release under

federal law, which is governed by the requirements of 18 U.S.C. § 3583(e)(3), and

requires finding a supervised release violation by a preponderance of the evidence.

United States v. Flynn , 844 F. Supp. 856, 860 (D. N.H. 1994) involved numerous

federal probation violations in which the court simply noted that its findings were

made on a preponderance of the evidence. Finally,      Bumgarner v. Middleton ,

No. 94-7003 1995 WL 275718 at *2 (Okla.) (May 10, 1995) recites that the

question at an Oklahoma revocation hearing is whether a preponderance of the

evidence established that petitioner had committed a crime.     Bumgarner , of course,

is an unpublished decision, and therefore not binding precedent, “except under the

doctrines of law of the case, res judicata, and collateral estoppel.” 10th Cir.

R. 36.3. We have, however, formally recognized Oklahoma’s preponderance of


                                           -12-
the evidence standard.     See United States v. Cantley , 130 F.3d 1371, 1376

(10th Cir. 1997). Petitioner cites to no New Mexico authority for his

preponderance of the evidence theory, nor have we found any.

       Petitioner’s citation to   Douglas , 412 U.S. 430 (1973), is likewise

unpersuasive. In Douglas , petitioner’s probation was revoked because he had

failed to report the issuance of a traffic citation, allegedly in violation of a

probation requirement to report all arrests without delay. However, under

appropriate state law, petitioner was not arrested because of the traffic citation.

Hence the Court’s conclusion, that the state court’s determination that petitioner

had violated probation “by failing to report ‘all arrests . . . without delay’ was so

totally devoid of evidentiary support as to be invalid under the Due Process Clause

of the Fourteenth Amendment,”       id. at 432, is not applicable to petitioner’s

situation. Here, petitioner was arrested and charged with receiving stolen

property. That he was ultimately not tried on that charge is not determinative of

the probation revocation issue.     See Maes v. State , 501 P.2d 695, 696 (N.M. Ct.

App. 1972) (conviction of subsequent offense not prerequisite for probation

revocation.) In addition, a prosecutor may press for revocation “either before or

after a probationer’s trial on related criminal charges.”    State v. Chavez , 694 P.2d

927, 930 (N.M. Ct. App. 1985).




                                             -13-
       Under New Mexico law, a probation revocation proceeding is analogous to

an administrative hearing, not part of a criminal prosecution.      See State v.

DeBorde , 915 P.2d 906, 908 (N.M. Ct. App. 1996). The hearing is “‘to determine

whether, during the probationary or parole period, the defendant has conformed to

or breached the course of conduct outlined in the probation or parole order.’”

State v. Foster , 965 P.2d 949, 950 (N.M. Ct. App. 1998) (quoting      State v. Sanchez ,

612 P.2d 1332, 1334 (N.M. Ct. App. 1980)). The degree of proof required to

establish a probation violation is

              such reasonable certainty as to satisfy the conscience of the
              court of the truth of the violation. It does not have to be
              established beyond a reasonable doubt. In such a hearing if the
              evidence inclines a reasonable and impartial mind to the belief
              that the defendant had violated the terms of his probation, it is
              sufficient. A hearing of this character is not a trial on a
              criminal charge, but is a hearing to judicially determine whether
              the conduct of the defendant during the probation period has
              conformed to the course outlined in the order of probation.

State v. Brusenhan , 438 P.2d 174, 176 (N.M. Ct. App. 1968) (further citation

omitted).

       Moreover, probation revocation proceedings are not directed at punishing

the original criminal activity, but rather to “reassess whether the petitioner may

still be considered a good risk.”    In re Lucio F.T. , 888 P.2d 958, 959 (N.M. Ct.

App. 1994); see also State v. Martinez , 775 P.2d 1321, 1324 (N.M. Ct. App. 1989)

(“court’s disposition function is predictive and discretionary.”). Here, the trial


                                            -14-
court found that the evidence, although by the thinnest of margins, was

nonetheless reasonably credible evidence of a violation of the terms and conditions

of petitioner’s probation. The court further stated that its conscience was

satisfied.   Upon review of the state court record, we are not persuaded that the

probation revocation decision was based on an unreasonable factual determination

based on evidence presented in the state court proceedings, nor was the state

court’s decision contrary to or an unreasonable application of clearly established

federal law. See Elliott v. Williams , 248 F.3d 1205, 1207 (10th Cir. 2001).

       Accordingly, the judgment of the United States District Court for the

District of New Mexico is AFFIRMED.



                                       Entered for the Court



                                       Stephen H. Anderson
                                       Circuit Judge




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