                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                        MAR 20 2000
                         FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    LOUIE ARCHULETA,

             Petitioner-Appellant,

    v.                                                 No. 98-2277
                                                (D.C. No. CIV-95-1016-LH)
    JOHN SHANKS, Warden and                             (D. N.M.)
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

             Respondents-Appellees.


                          ORDER AND JUDGMENT            *




Before BALDOCK , BRISCOE , and LUCERO , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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 Louie Archuleta, a New Mexico prisoner, seeks to appeal the

district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254. 1 Because Archuleta has failed to make a “substantial showing of the

denial of [a] federal right,”   Barefoot v. Estelle , 463 U.S. 880, 893 (1983)

(quotation omitted), we decline to issue a certificate of probable cause and we

dismiss the petition.   2



       A jury convicted Archuleta of incest and criminal sexual penetration. The

New Mexico state courts denied relief on direct appeal and in post-conviction

proceedings. In his federal district court § 2254 petition, Archuleta asserted that

(1) his trial counsel rendered ineffective assistance counsel; (2) there was

insufficient evidence to support a guilty verdict; and (3) he was denied a fair trial

due to prosecutorial misconduct and cumulative error.     3
                                                              After holding an

1
        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.
2
       Archuleta filed his habeas petition before April 24, 1996, the effective date
of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L.
No. 104-132, 110 Stat. 1214, so AEDPA’s certificate of appealability
requirements do not apply. See United States v. Kunzman , 125 F.3d 1363, 1364
n.2 (10th Cir. 1997). Nevertheless, the pre-AEDPA version of 28 U.S.C. § 2253
required that a § 2254 habeas petitioner obtain a certificate of probable cause
before taking an appeal from a final order denying habeas relief.   See 28 U.S.C.
§ 2253 (1994).
3
       Archuleta also claimed that the trial testimony of the victim, Sherry
                                                                       (continued...)

                                            -2-
evidentiary hearing, a magistrate judge issued proposed findings and a

recommendation that the petition be denied. The district court adopted the

magistrate judge’s findings and recommendation.

       To demonstrate that his attorney provided constitutionally ineffective

assistance of counsel, Archuleta must show that the attorney “made errors so

serious that counsel was not functioning as the ‘counsel’ guaranteed [him] by the

Sixth Amendment” and that the “errors were so serious as to deprive [him] of a

fair trial, a trial whose result is reliable.”     Strickland v. Washington , 466 U.S.

668, 687 (1984). Upon review of the record, we find that Archuleta failed to

carry this burden because counsel’s actions were attributable to a reasonable trial

strategy. Thus, we conclude that Archuleta’s ineffective assistance of counsel

claim does not present a substantial constitutional issue.

       The test for a sufficiency of the evidence claim on federal habeas review is

“whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.”            Jackson v. Virginia , 443 U.S. 307, 319




3
 (...continued)
Archuleta, was coached by whispered instructions from the prosecutor and trial
judge, perhaps through a hidden microphone. He has abandoned that theory on
appeal.

                                                 -3-
(1979). A reviewing court “may not weigh conflicting evidence nor consider the

credibility of witnesses. Rather, the Court must ‘accept the jury’s resolution

of the evidence as long as it is within the bounds of reason.’”       Messer v. Roberts ,

74 F.3d 1009, 1013 (10th Cir. 1996) (quoting        Grubbs v. Hannigan , 982 F.2d 1483,

1487 (10th Cir. 1993)). We agree with the district court that the evidence, viewed

in the light most favorable to the government, provides ample support for

Archuleta’s conviction.

       Concerning prosecutorial misconduct, Archuleta would be entitled to

habeas relief only if he established that the misconduct “infected the trial to such

an extent that it resulted in a fundamentally unfair trial.”      Fox v. Ward , 200 F.3d

1286, 1299 (10th Cir. 2000) (citing      Donnelly v. DeChristoforo , 416 U.S. 637, 645

(1974)). He contends that the prosecutor coerced his trial attorney to destroy a

copy of an affidavit and also intimidated witnesses. Even assuming these

allegations are true, Archuleta has not demonstrated that these actions resulted in

an unfair trial.

       Finally, Archuleta argues that the combination of errors in this case

rendered his trial fundamentally unfair. However, “because we find no error in

this case, defendant can show no basis for cumulative error.”         United States v.

Hernandez-Muniz , 170 F.3d 1007, 1013 (10th Cir. 1999);           see also Moore v.

Reynolds , 153 F.3d 1086, 1113 (10th Cir. 1998) (“Cumulative error analysis


                                              -4-
applies where there are two or more actual errors; it does not apply to the

cumulative effect of non-errors.”),   cert. denied , 119 S. Ct. 1266 (1999).

       In sum, we are unpersuaded by petitioner’s assertions of error. We DENY

Archuleta’s application for a certificate of probable cause. The appeal is

DISMISSED.



                                                      Entered for the Court



                                                      Carlos F. Lucero
                                                      Circuit Judge




                                           -5-
