                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           July 13, 2005
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                  Clerk


    MAX A. JACKSON,

               Petitioner-Appellant,

     v.                                                   No. 04-2192
                                                 (D.C. No. CIV-02-634-LH/RHS)
    JOE WILLIAMS, Warden, Lea County                        (D. N.M.)
    Correctional Facility; ATTORNEY
    GENERAL FOR THE STATE OF
    NEW MEXICO,

               Respondents-Appellees.


                              ORDER AND JUDGMENT           *




Before LUCERO , PORFILIO , and BALDOCK , 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      This order and judgment is not binding precedent, except under the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-appellant Max A. Jackson appeals from the district court’s order

denying his petition for habeas relief filed under 28 U.S.C. § 2254 . We granted a

certificate of appealablility (COA) on two issues. The first issue is whether the

New Mexico Court of Appeals unreasonably applied Batson v. Kentucky, 476 U.S.

79, 97-98 (1986). The court concluded that the prosecutor’s reason for excusing a

venireperson on the basis that he demonstrated sympathy and bias for Mr. Jackson

by stating that he felt it was unfair that Mr. Jackson, who is African-American,

would “be tried before a jury containing no African-American jurors” was a valid,

race-neutral reason for excluding the juror. Aplt. App. at 63.

      The second issue has several subparts for a claim of ineffective assistance

of counsel. The first is whether the New Mexico state courts unreasonably

applied Strickland v. Washington, 466 U.S. 668 (1984), in refusing to grant

habeas relief for Mr. Jackson’s counsel’s failure to seek disqualification of the

district attorney’s office. The state court denied the claim because Mr. Jackson

could not show prejudice, “[t]he evidence of [his] guilt [having been]

overwhelming.” Aplt. App. at 69. The second is whether the federal district

court erred in determining that Mr. Jackson’s counsel’s failure to challenge the

venire selection procedure was not objectively unreasonable and not prejudicial.

The third is whether the federal district court erred in concluding that Jackson’s

counsel conducted a sufficient investigation into a key witness’s credibility. And


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the fourth part of the issue is whether the federal district court erred in

concluding that counsel was not ineffective for having made a strategic decision

not to compel an interview or deposition or the disclosure of the location of a

potential witness. We exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253,

and affirm.

                                           I

      Following a jury trial, Mr. Jackson was convicted in New Mexico state

court of three counts of trafficking cocaine by distribution and one count of

conspiracy to traffic cocaine. His convictions were affirmed on direct appeal and

his subsequent state petitions for post-conviction relief were denied. Mr. Jackson

brought a habeas petition in federal district court, asserting the same issues set

forth above. The New Mexico courts had addressed the merits of only the       Batson

issue and the ineffective-assistance-of-counsel claim related to counsel’s failure

to seek disqualification of the district attorney’s office. The state courts denied

relief on the other three ineffective-assistance-of-counsel claims without

discussion. The magistrate judge to whom the federal habeas petition was

assigned prepared a thorough, eighteen-page report fully analyzing all claims,

which the district court adopted in denying the petition for habeas corpus.




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                                          II

      Because this habeas petition was filed after the effective date of the

Antiterrorism and Effective Death Penalty Act (AEDPA), Pub. L. No. 104-132,

110 Stat. 1214 (1996), it is governed by AEDPA’s provisions.      See Mitchell v.

Gibson , 262 F.3d 1036, 1045 (10th Cir. 2001).

             When reviewing the denial of a habeas corpus petition, we are
      generally subject to two different frameworks of review, depending
      upon whether the state courts addressed the merits of the claim for
      relief. If the state courts have not heard the claim on its merits, we
      review the district court’s legal conclusions de novo and its factual
      findings, if any, for clear error. If the state courts have addressed the
      claim on its merits, we review the state court ruling under the
      standard enunciated under 28 U.S.C. § 2254.

Id. (quoting Hale v. Gibson , 227 F.3d 1298, 1309 (10th    Cir. 2000)).

      After AEDPA, a federal court may not grant habeas relief on a claim
      adjudicated on the merits in state court unless the state court decision
      “was contrary to, or involved an unreasonable application of, clearly
      established Federal law, as determined by the Supreme Court,” 28
      U.S.C. § 2254(d)(1), or “was based on an unreasonable determination
      of the facts in light of the evidence presented in the State court
      proceeding,” id. § 2254(d)(2). State court fact findings are presumed
      correct unless the petitioner rebuts them by clear and convincing
      evidence. A state court decision is contrary to clearly established
      federal law under section 2254(d)(1) 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 Supreme Court has on a set of materially indistinguishable facts.
      A state court decision is an unreasonable application of federal law
      under section 2254(d)(2) 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.
      The reasonableness of the state court’s application of federal law is
      to be evaluated by an objective standard. The Supreme Court has

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      cautioned that an unreasonable application of federal law is different
      from an incorrect or erroneous application of federal law.

Id. (quotation marks, citations, and brackets omitted).

      Applying these standards, we have carefully reviewed the record, the

parties’ arguments, and the applicable law in this case. For substantially the same

reasons stated in the magistrate judge’s amended report and recommendations

filed June 15, 2004, we conclude that the habeas petition was properly denied.

      The judgment of the district court is AFFIRMED.

                                                    Entered for the Court


                                                    John C. Porfilio
                                                    Circuit Judge




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