                                                                       FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES COURT OF APPEALS                 July 24, 2013
                                                              Elisabeth A. Shumaker
                                TENTH CIRCUIT                     Clerk of Court



 GABRIEL AYALA,

              Petitioner - Appellant,                    No. 13-2009
       v.                                 (D.C. No. 6:10-CV-01240-MV-LFG)
 TIMOTHY HATCH, Warden; GARY                              (D. N.M.)
 K. KING, Attorney General for the
 State of New Mexico,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before HARTZ, O’BRIEN, and GORSUCH, Circuit Judges.


      Applicant Gabriel Ayala, a New Mexico state prisoner, filed a pro se

application for relief under 28 U.S.C. § 2254 in the United States District Court

for the District of New Mexico. The district court denied his application.

Proceeding pro se and in forma pauperis, Applicant now seeks a certificate of

appealability (COA) from this court to appeal the district court’s decision. See 28

U.S.C. § 2253(c)(1)(A) (requiring COA to appeal denial of § 2254 relief). We

deny the application for a COA and dismiss the appeal.

I.    BACKGROUND

      In 2004 Applicant pleaded guilty to three first-degree-felony and four third-

degree-felony counts of child abuse, see N.M. Stat. Ann. § 30-6-1(D)(1), (2)
(2001), all related to alleged abuse of his two-month-old daughter Alicia. The

state district court sentenced Applicant to a total of 30 years’ imprisonment. It

further found that each count constituted a “serious violent offense” under New

Mexico’s Earned Meritorious Deduction Act (EMDA), a finding which limits a

prisoner’s accrual of good-time credits to four days per month of time served

instead of the typical 30 days. Id. § 33-2-34(A)(1) (1999). The New Mexico

Court of Appeals affirmed the conviction and sentence, see State v. Ayala, 140

P.3d 547 (N.M. Ct. App. 2006), and the New Mexico Supreme Court denied a

petition for a writ of certiorari, see id.

      Applicant applied for postconviction relief in the state trial court, asserting,

among other things, that his counsel, Robert Cooper, had been constitutionally

ineffective. The court conducted an evidentiary hearing and in March 2010

granted partial relief. It ruled that Cooper had been ineffective at sentencing by

failing to present “certain compelling evidence” that would have caused the court

to impose a lesser sentence. R., Vol. I at 235. But it rejected Applicant’s other

complaints about Cooper’s performance. It set the matter for resentencing and on

April 8, 2010, entered an amended judgment imposing a sentence of 18 years’

imprisonment. It again found that all the counts were serious violent offenses.

The New Mexico Supreme Court denied Applicant’s petition for a writ of

certiorari seeking review of the partial denial of postconviction relief. Applicant

then appealed the amended judgment. The court of appeals affirmed, and the

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New Mexico Supreme Court again denied Applicant’s petition for a writ of

certiorari.

       In December 2010 Applicant filed his § 2254 application in federal district

court, asserting four grounds for relief. First, he argued that Cooper had rendered

ineffective assistance leading up to his guilty plea by failing to (1) challenge a

confession he gave to police and officials with the New Mexico Children, Youth,

and Family Department (CYFD) after taking Alicia to the hospital; (2) investigate

Alicia’s preexisting medical conditions, which could have explained her injuries

allegedly caused by abuse; (3) verify the timeline of the six days during which the

abuse allegedly occurred; and (4) investigate the possible culpability of his then-

wife. Second, he argued that there was insufficient evidence of the mental state

required to classify the counts as serious violent offenses. Third, he argued that

his conviction for multiple counts of child abuse violated the Double Jeopardy

Clause. And fourth, he argued that the state appellate courts had based their

decisions on statements of fact by the prosecutor that were unsupported by

evidence. The district court denied relief.

       Applicant seeks a COA from this court to appeal the district court’s denial

of his § 2254 application. Most of his arguments concern his counsel’s

performance before he entered his guilty plea. He asserts that Cooper was

ineffective in (1) failing to assert Applicant’s constitutional right to a speedy

trial; (2) focusing on sentencing as the sole defense strategy; (3) failing to

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interview additional witnesses, including Applicant’s business acquaintances and

other children; (4) failing to retain an additional medical expert, or to supply the

retained expert with additional information, in preparation of a mental-health

defense; (5) providing inadequate advice during plea negotiations and inducing

Applicant to plead guilty by falsely assuring him that he would be sentenced to no

more than 12 years’ imprisonment and may serve as few as six; (6) failing to file

a pretrial motion to suppress coerced inculpatory statements; and (7) failing to

investigate Alicia’s medical conditions. He argues that these deficiencies

prejudiced him because, had counsel provided competent representation, he would

have gone to trial. As an additional ground for relief, he renews the argument

that there was insufficient evidence to support the state court’s finding that his

offenses were serious violent offenses under the EMDA. Finally, he claims that

the federal district court abused its discretion in failing to appoint counsel, order

discovery, or conduct an evidentiary hearing in his § 2254 case. He does not

challenge the district court’s rulings on the other grounds in his § 2254

application.

II.   DISCUSSION

      A COA will issue “only if the applicant has made a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

requires “a demonstration that . . . includes showing that reasonable jurists could

debate whether (or, for that matter, agree that) the [application] should have been

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resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted). In other words, the applicant must

show that the district court’s resolution of the constitutional claim was either

“debatable or wrong.” Id.

      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that when a claim has been adjudicated on the merits in state court, a

federal court can grant habeas relief only if the applicant establishes that 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.” 28 U.S.C.

§ 2254(d)(1), (2). As we have explained:

      Under the “contrary to” clause, we grant relief only if the state court
      arrives at a conclusion opposite to that reached by the Supreme Court
      on a question of law or if the state court decides a case differently
      than the Court has on a set of materially indistinguishable facts.

Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir.2004) (brackets and internal

quotation marks omitted). Relief is provided under the “unreasonable

application” clause “only if the state court identifies the correct governing legal

principle from the Supreme Court’s decisions but unreasonably applies that

principle to the facts of the prisoner’s case.” Id. (brackets and internal quotation


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marks omitted). Thus, a federal court may not grant habeas relief simply because

it concludes in its independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or incorrectly. See id. Rather,

that application must have been unreasonable. Moreover, “AEDPA’s deferential

treatment of state court decisions must be incorporated into our consideration of

[his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938 (10th Cir. 2004).

      We address Applicant’s arguments in turn.

      A.     Ineffective Assistance of Counsel

      To establish ineffective assistance of counsel, Applicant first has the

burden of overcoming “a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance,” Strickland v. Washington,

466 U.S. 668, 689 (1984), by demonstrating that his counsel’s performance fell

below “an objective standard of reasonableness,” id. at 688. Our review here is

“doubly deferential,” as “[w]e take a highly deferential look at counsel’s

performance through the deferential lens of § 2254(d).” Cullen v. Pinholster, 131

S. Ct. 1388, 1403 (2011) (citation and internal quotation marks omitted). Second,

Applicant must demonstrate that the “deficiencies in counsel’s performance

[were] prejudicial to the defense.” Strickland, 466 U.S. at 692. Because

Applicant challenges his guilty plea based on ineffective assistance of counsel, he

must show “a reasonable probability that, but for counsel’s errors, he would not




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have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,

474 U.S. 52, 59 (1985).

         To begin with, we note that Applicant’s first five ineffective-assistance

claims were not preserved below. As to Cooper’s failure to assert Applicant’s

constitutional right to a speedy trial, “[w]e need not address [this] argument[]

because [Applicant] failed to raise [it] in the district court.” See Parker v. Scott,

394 F.3d 1302, 1309 n.1 (10th Cir. 2005). And although Applicant raised the

next four claims in his objections to the magistrate judge’s report and

recommendation, he omitted them from his § 2254 application. We have held that

“theories raised for the first time in objections to the magistrate judge’s report are

deemed waived.” United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir.

2001).

         That leaves only two ineffective-assistance claims: (1) Cooper’s failure to

file a motion to suppress Applicant’s inculpatory statement to authorities and (2)

Cooper’s failure to investigate Alicia’s medical conditions. Applicant raised both

claims in his state postconviction proceedings, and the court summarily rejected

them. When the state court rejects a claim on the merits without explanation, we

must deny relief under § 2254 unless the applicant “show[s] that there was no

reasonable basis for the state court to deny relief.” Black v. Workman, 682 F.3d

880, 892 (10th Cir. 2012) (internal quotation marks omitted).




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      The district court was unquestionably correct to deny relief based on

Cooper’s failure to file a motion to suppress Applicant’s statements to police and

CYFD officials. Cooper testified at the state-court evidentiary hearing that

Applicant had admitted to his wife, to authorities, and to Cooper that he had hit

Alicia, and that Applicant never recanted his admission to Cooper. Cooper

further testified that he determined, based on his view of the evidence, that

Applicant’s best course of action would be to accept responsibility for the abuse

by pleading guilty, and that Cooper should focus on sentencing. He wanted to try

to get the state to work with him on a favorable plea agreement and did not think

that filing a motion to suppress Applicant’s inculpatory statements would advance

this strategy. The state court could reasonably conclude that this strategy did not

violate Cooper’s duty of competent assistance. See Cullen, 131 S. Ct. at 1407–08

(counsel’s decision to pursue a particular trial strategy to the exclusion of another

is “due a heavy measure of deference” (internal quotation marks omitted)); Premo

v. Moore, 131 S. Ct. 733, 741–42 (2011) (deference to strategic decisions is “all

the more essential when reviewing the choices of an attorney made at the plea

bargaining stage”); id. at 742–43 (counsel not ineffective for failing to file motion

to suppress before advising client to plead guilty).

      There is likewise nothing debatable about the district court’s denial of

relief based on Cooper’s failure to investigate Alicia’s preexisting medical

conditions. Applicant alleges that Alicia was diagnosed with osteogenesis

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imperfecta (OI), or brittle-bone disease, which, he claims, could explain her

injuries. He further alleges that before he entered his guilty plea some members

of his family told Cooper that Alicia may have OI, an allegation supported by

testimony at the state-court evidentiary hearing. We recognize that an OI

diagnosis may exculpate a parent accused of inflicting injuries on a child. See,

e.g., In re Julia BB., 837 N.Y.S.2d 398, 408–10 (N.Y. App. Div. 2007) (reversing

finding of child abuse and termination of parental rights based in part on evidence

of OI). Perhaps the requests by Applicant’s family should have prompted Cooper

to investigate this area. The problem for Applicant, however, is that nothing in

the record establishes that Alicia actually had the disease. Despite being

represented by counsel in his state postconviction proceedings, Applicant

presented neither testimony nor medical records suggesting that Alicia was ever

diagnosed with or treated for OI. Having developed no evidence of what an

investigation of possible OI would have revealed, Applicant cannot demonstrate

prejudice from Cooper’s failure to conduct such an investigation.

      B.     Sufficiency of the Evidence

      Applicant challenges the sufficiency of the evidence of the finding that all

the counts to which he pleaded guilty were serious violent offenses under the

EMDA. In particular, he argues that because he was suffering from severe sleep

deprivation at the time of the alleged abuse, he did not possess the requisite

mental state for a serious-violent-offense finding. See State v. Scurry, 158 P.3d

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11034, 1036 (N.M. Ct. App. 2007) (serious violent offense must be committed

with “intent to do serious harm or with recklessness in the face of knowledge that

one’s acts are reasonably likely to result in serious harm” (internal quotation

marks omitted)).

      “Under the Due Process Clause, evidence is sufficient if, viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the [required mental state] under the appropriate standard of

proof.” Gonzales v. Tafoya, 515 F.3d 1097, 1126 (10th Cir. 2008) (internal

quotation marks omitted). “Sufficiency of the evidence on a habeas petition is a

mixed question of law and fact. We ask whether the facts are correct and whether

the law was properly applied to the facts, which is why we apply both 28 U.S.C.

§ 2254(d)(1) and (d)(2) when reviewing sufficiency of the evidence on habeas.”

Brown v. Sirmons, 515 F.3d 1072, 1089 (10th Cir. 2008) (citation and internal

quotation marks omitted). New Mexico courts require that the classification of an

offense as a serious violent offense be “supported by substantial evidence.” State

v. Montoya, 114 P.3d 393, 397 (N.M. Ct. App. 2005).

      Entertaining the same challenge on Applicant’s first direct appeal, the state

court of appeals explained:

      [Applicant] does not contest the extent of his daughter’s injuries,
      which included three skull fractures, eight broken ribs, a broken
      fibula, and numerous bruises. He admitted that he inflicted injuries
      on at least three occasions, possibly four. The district court found
      that it was unlikely his daughter would ever fully recover from her

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      injuries. Additionally the district court found that owing to the fact
      that [Applicant’s] daughter was two months old, she was helpless
      during the abuse, and that [Applicant] had attempted to cover up his
      actions and their effects. These findings are sufficient to establish a
      serious violent offense as contemplated under the EMDA.

Ayala, 140 P.3d at 550. We cannot say that the state court unreasonably

determined any of these facts, most of which were uncontested. (The court was

entitled to discount the testimony of Applicant’s expert, who testified at the

sentencing hearing concerning the effects of sleep deprivation. See Gonzales, 515

F.3d at 1127.) Likewise, a rational factfinder could determine that the court’s

findings provided substantial support for the conclusion that Applicant acted with

at least recklessness in the face of knowledge that his acts would likely cause

serious harm to Alicia. There is nothing debatable about the district court’s

rejection of this claim.

      C.     Other Challenges

      Applicant challenges the district court’s denial of his request for appointed

counsel. We need not decide whether he needs a COA to pursue this issue, cf.

Harbison v. Bell, 556 U.S. 180, 183 (2009) (“An order . . . that denies a motion

for appointment of counsel . . . is . . . not subject to the COA requirement.”),

because the issue clearly lacks merit. “[H]abeas petitioners have no constitutional

right to post-conviction counsel,” Banks v. Workman, 692 F.3d 1133, 1147 (10th

Cir. 2012), and “[t]he decision to appoint counsel is left to the sound discretion of

the district court,” Engberg v. Wyoming, 265 F.3d 1109, 1122 (10th Cir. 2001).

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The court denied Applicant’s motion for appointed counsel because he

“appear[ed] to understand the issues in the case and to be representing himself in

an intelligent and capable manner.” R., Vol. I at 591 (Order Denying

Appointment of Counsel at 1, Ayala v. Hatch, No. CIV 10-1240 MV/LFG

(D.N.M. Aug. 4, 2011)). We see no abuse of discretion in the court’s decision.

       Finally, Applicant argues that the district court erred in refusing to hold an

evidentiary hearing, order discovery, or expand the record. But the Supreme

Court has held “that review under § 2254(d)(1) is limited to the record that was

before the state court that adjudicated the claim on the merits.” Cullen, 131 S. Ct.

at 1398. Therefore, the district court properly denied Applicant’s requests to

consider additional evidence that was not part of the record before the state court.

III.   CONCLUSION

       We DENY the application for a COA and DISMISS the appeal.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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