                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                         May 23, 2006
                            FO R TH E TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                         Clerk of Court

    R OSA RIO G A RC IA ,

                Petitioner-A ppellant,

    v.                                                   No. 05-2159
                                               (D.C. No. CIV-04-606-W J/LFG)
    ERASM O BRAVO, W arden,                               (D . N.M .)
    Guadalupe County Correctional
    Facility,

                Respondent-Appellee.



                             OR D ER AND JUDGM ENT *


Before T YM KOV IC H, M cKA Y, and BALDOCK , Circuit Judges.




         Rosario Garcia, a New M exico prisoner who pled guilty to fourteen felony

counts of criminal sexual penetration and criminal sexual contact with his oldest

daughter, appeals from the district court’s denial of his petition for a writ of

habeas corpus filed pursuant to 28 U.S.C. § 2254. He argued in the state courts


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
and in the federal district court that the counsel who represented him in

connection with his guilty plea and the counsel who represented him when he

sought to withdraw that plea were both constitutionally ineffective. He continues

to make the same arguments on appeal. Exercising jurisdiction under 28 U.S.C.

§1291 and § 2253, we affirm.

                                         I.

      In June 1998, Dolores Garcia, M r. Garcia’s fifteen-year-old daughter, went

to M exico with a youth group. She indicated to her chaperone, Sandy Rodriguez,

that her father had sexually abused her. M s. Rodriguez reported this to M iguel

Acosta, who headed the youth group. M r. Acosta thereafter reported D olores’

accusations to the New M exico Children, Youth, and Families Department. The

Department scheduled her for a Safehouse Interview, during which she described

sexual abuse by M r. Garcia beginning at age four. After this interview, the

Department removed D olores from her parents’ home and placed her with her

maternal grandmother.

      Three mental health counselors, Dr. LaRissa Newell, Dr. Karen W ilbur, and

M ary Roe, concluded that Dolores suffered from post traumatic stress disorder

(PTSD ). Nothing indicated Dolores had been subjected to stressors other than the

alleged sexual abuse. Dr. Renee Ornelas examined Dolores and found that

although her body was within normal physical limits, the finding did not exclude

many forms of sexual abuse.

                                         -2-
      Eventually, in 2000, M r. Garcia was charged with sexually abusing Dolores

over a period of years. Specifically, he was charged with seven counts of

first-degree criminal sexual penetration and nine counts of third-degree criminal

sexual contact with a minor, exposing him to a possibility of 162 years’

imprisonment. Ron Sanchez represented M r. Garcia at this time. The State made

its first plea offer on August 22, 2000, less than a month before the scheduled

trial date. M r. Garcia rejected the offer, which would have exposed him to a

maximum of sixty years’ imprisonment. On September 1, the trial judge heard

M r. Garcia’s motion to continue the trial in order to obtain an expert witness who

could address Dolores’ alleged PTSD. The court denied the motion to continue,

but stated that a defense expert could sit through the trial and testify based on the

evidence presented. After the hearing, the State made a plea offer identical to the

first offer. M r. Garcia initially accepted this second offer, but within a few

minutes he changed his mind and rejected it.

      Thereafter, M r. Sanchez interviewed Dolores. During the interview, she

described abuse beginning at age four and continuing until high school. After

listening to the interview tape, M r. Garcia concluded that Dolores’ testimony was

very believable.

      Thereafter, M r. Sanchez asked the prosecutor for another plea offer.

Although it was contrary to policy to enter into a plea bargain after a child victim

had been interviewed, the prosecution agreed to a plea bargain that contained

                                          -3-
more charges than the prior two plea offers. This plea offer had a sentencing cap

of seventy-eight years, w hich reflected the additional charges that the State

intended to bring against M r. Garcia based on Dolores’ additional disclosures at

her interview with M r. Sanchez. M r. Garcia accepted this plea offer and pled

guilty to three counts of attempted first-degree criminal sexual penetration, three

counts of second-degree criminal sexual penetration, and eight counts of

third-degree criminal sexual contact with a minor. 1 During the plea proceedings,

M r. Garcia confirmed that he understood and agreed with the plea agreement, that

he was pleading guilty to fourteen felony counts, that the parties had made no

agreement as to the sentence, that he understood the rights he was giving up, that

he understood the charges facing him, and that his sentence could be from

probation to seventy-eight years’ imprisonment.

      Sometime after his plea, M r. Garcia discharged M r. Sanchez and retained

Alex Chisholm as counsel. On the day M r. Garcia was scheduled for sentencing,

he moved to withdraw his guilty plea on the ground that it was not knowingly,

voluntarily, and intelligently entered. M r. Garcia argued for withdrawal of the

plea because M r. Sanchez provided ineffective assistance of counsel by failing to

obtain a needed expert mental health witness, thereby forcing him to plead guilty.

M r. Garcia also alleged that because Dolores’ testimony was convincing,



1
       The plea relieved M r. Garcia of the possibility that the State would bring
additional charges against him with respect to Dolores and another daughter.

                                         -4-
M r. Sanchez’s ineffective assistance forced him to plead guilty, although he was

innocent. After holding an evidentiary hearing, the state district court denied the

motion to w ithdraw the plea, finding that M r. Sanchez had interview ed the State’s

witnesses, including Dolores and the State’s experts; that he had met with

M r. Garcia numerous times and discussed the possible testimony of the State’s

witnesses and the possible outcome of the trial; that M r. Garcia had full

knowledge of the State’s case at the time he entered his plea; that M r. Sanchez’s

failure to obtain an expert witness did not affect M r. Garcia’s decision to plead

guilty; and that the plea was knowingly and voluntarily entered. Aplt. A pp.,

Vol. 1 at 254-56. The court sentenced M r. Garcia to seventy-eight years’

imprisonment with a twenty-eight year suspended sentence. The New M exico

Court of Appeals affirmed the denial of the motion to withdraw the plea, holding

that M r. Garcia’s plea was knowing and voluntary and that he failed to show

ineffective assistance of counsel. Id. at 44-45, 58-63. The New M exico Supreme

Court denied a writ of certiorari. State v. Garcia, 42 P.3d 842 (N.M . 2002)

(table).

       M r. Garcia filed a petition for a w rit of habeas corpus in state district court

alleging that both M r. Sanchez and M r. Chisholm provided ineffective assistance

of counsel. After holding an evidentiary hearing, at the direction of the

New M exico Supreme Court, the state district court denied habeas relief, ruling

that M r. Sanchez’s performance was not deficient. Aplt. A pp., Vol. 1 at 165.

                                           -5-
Also, the court decided that M r. Garcia was not prejudiced by M r. Sanchez’s

performance because M r. Garcia had rejected two prior plea offers, the State

intended to bring additional charges against him, M r. Garcia admitted D olores’

interview statements were credible and he could be convicted based on that

testimony, the indictment exposed him to 168 years’ imprisonment for which

much of the time was mandatory, Dolores had been diagnosed with PTSD and

various witnesses’ testimony would support that diagnosis, M r. Garcia had failed

two polygraph tests, the State had a strong case for conviction, and M r. Garcia

waited over a month to move to withdraw his plea even though he had appeared in

court less than a week after the plea. Id. at 165-66, 167. Although the court

decided that M r. Chisholm’s performance was deficient, it concluded that proper

performance would not have resulted in the court allowing the withdrawal of the

guilty plea. Id. at 166. The New M exico Supreme Court denied a writ of

certiorari.

       M r. Garcia then filed a federal petition for writ of habeas corpus, again

arguing that both M r. Sanchez and M r. Chisholm provided ineffective assistance

of counsel. After making thorough findings and a recommendation, the

magistrate judge recommended that habeas relief be denied. After thoroughly

considering and rejecting M r. Garcia’s objections to the magistrate judge’s

recommendation, the district court adopted the recommendation and denied relief.

This appeal followed.

                                          -6-
                                         II.

      Ineffective assistance of counsel claims “involve mixed questions of law

and fact for purposes of review under § 2254.” Fields v. Gibson, 277 F.3d 1203,

1215 (10th Cir. 2002) (quotation omitted). W hen a claim has been adjudicated on

the merits in state court, as it has been here, we will not grant relief under § 2254

unless the state court’s decision was “contrary to, or involved an unreasonable

application of” Supreme Court precedent 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). W e presume a state court’s factual

findings are correct unless a defendant can show incorrectness of the findings by

clear and convincing evidence. Id. § 2254(e)(1). “W e review de novo the district

court’s legal analysis of the state court decision.” Turrentine v. M ullin, 390 F.3d

1181, 1189 (10th Cir. 2004), cert. denied, 125 S. Ct. 2544 (2005).

                                         III.

      To prevail on an ineffective assistance of counsel claim, a defendant must

show both that counsel’s performance was deficient and that the deficient

performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687

(1984). Under the first prong of the test, “counsel’s representation [must] f[a]ll

below an objective standard of reasonableness.” Id. at 688. Under the second

prong, there “must . . . [be] a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

                                         -7-
A reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694.

      “[T]he two-part Strickland . . . test applies to challenges to guilty pleas

based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58

(1985). “[T]o satisfy the ‘prejudice’ requirement, the defendant must show that

there is a reasonable probability that, but for counsel’s errors, he would not have

pleaded guilty and would have insisted on going to trial.” Id. at 59.

      W hen assessing “prejudice,” a court may consider the likelihood that
      the correction of an alleged error “would have led counsel to change
      his recommendation as to the plea. This assessment, in turn, will
      depend in large part on a prediction whether the [error] likely would
      have changed the outcome of a trial.”

Fields, 277 F.3d at 1215 (quoting Hill, 474 U.S. at 59).

A. M r. Sanchez

      M r. Garcia argues that his guilty plea was not entered voluntarily and

intelligently because M r. Sanchez provided ineffective assistance of counsel.

See Rom ero v. Tansy, 46 F.3d 1024, 1033 (10th Cir. 1995) (observing that

ineffective assistance of counsel can render plea involuntary). M r. Garcia argues

that M r. Sanchez was ineffective in eight separate ways; specifically, that

M r. Sanchez: (1) failed to obtain a mental health expert to challenge the State’s

expert evidence concerning Dolores’ alleged PTSD; (2) failed to obtain a

consulting medical expert; (3) failed to interview all of the State’s proposed

witnesses; (4) did not competently question Dr. Ornelas concerning her physical

                                         -8-
examination of Dolores; (5) did not ask the trial court for an independent

psychological examination of Dolores; (6) did not explain to M r. Garcia the

extent, significance, or potential use of the inconsistencies in D olores’

allegations; (7) led M r. Garcia to believe that if he pled guilty he would have a

chance for probation; and (8) should have objected at the plea hearing because the

trial court failed to (a) advise M r. Garcia of the nature of the charges or ensure he

understood the charges and (b) adequately establish the factual basis for the plea

on the record.

      W e need not address whether M r. Sanchez’s performance was deficient,

because it is easier to decide the ineffectiveness claim on the prejudice

component only. See Strickland, 466 U.S. at 697 (“[A] court need not determine

whether counsel’s performance was deficient before examining the prejudice

suffered by the defendant as a result of the alleged deficiencies.”). Regardless of

whether M r. Sanchez’s performance was deficient, M r. Garcia has failed to show

that prejudice resulted from M r. Sanchez’s performance.

      M r. Garcia argues that if M r. Sanchez had done all eight things listed

above, there is a reasonable probability that he would have gone to trial instead of

accepting a plea offer that exposed him to seventy-eight years’ imprisonment.

He maintains that the two main reasons he pled guilty were his lack of a mental

health expert to counter the PTSD diagnosis and Dolores’ credibility in her

interview with M r. Sanchez. If M r. Sanchez had properly represented him,

                                          -9-
M r. Garcia contends he would have understood (1) that the inconsistencies in

Dolores’ various statements could have been used to impeach her; (2) that a

mental health expert could have exposed any flaws in the prosecution’s mental

health testimony; (3) that a defense medical expert could have explained that

Dolores’ normal physical examination contradicted her allegations that

M r. Garcia had repeatedly raped her; and (4) that a plea would result in a lengthy

prison sentence. To further support his prejudice argument, M r. Garcia points out

that he had consistently maintained that he was innocent and that he had rejected

two more favorable plea agreements. In addition, M r. Garcia believes that the

evidence against him was underw helming.

      “[T]he strength of the government’s case against [M r. Garcia] should be

considered in evaluating whether [he] really would have gone to trial if he had

received adequate advise from his counsel.” M iller v. Champion, 262 F.3d 1066,

1069 (10th Cir. 2001). As both the state and federal district courts, in this case,

recognized, the State’s case against M r. G arcia was strong. Aplt. A pp., Vol. 1

at 166; id., Vol. 3 at 719. Even he apparently thought so, as reflected by his

belief that Dolores’ testimony was believable and by his request for another plea

offer, even though he previously had rejected two more favorable offers. Nothing

in the record indicated that the consistent PTSD diagnoses could be supported by

anything but sexual abuse. And M r. Garcia presented no convincing reasons for

Dolores to fabricate accusations against him.

                                         -10-
      Additionally, the plea provided a benefit to M r. Garcia. In exchange for his

guilty plea, the State agreed not to bring additional felony charges against

M r. Garcia with respect to Dolores and another daughter. Also, M r. Garcia’s

sentence exposure was significantly less with the plea. The record of the plea

colloquy makes clear that the trial court fully informed M r. Garcia of the possible

sentence. And M r. Garcia acknowledged that he understood the possible

sentence. Furthermore, he could have asked to withdraw his guilty plea when he

appeared before the trial court at a hearing on conditions for release six days after

he pled guilty. Instead, he waited a month before doing so. 2

      Under the totality of the factual circumstances surrounding the plea, there

is not a reasonable probability that but for M r. Sanchez’s alleged failures,

M r. Garcia would have decided not to plead guilty and instead would have gone

to trial. See Hill, 474 U.S. at 59; M iller, 262 F.3d at 1072. M r. Garcia’s later

regret at pleading guilty is not sufficient for constitutional error. Accordingly,

we conclude that the state court’s determination that M r. Garcia was not

prejudiced by M r. Sanchez’s defense was not an unreasonable application of Hill.

See 28 U.S.C. § 2254(d)(1).




2
      M r. Garcia claims that he was suffering from a major depression at the time
he accepted the plea agreement and the depression affected his ability to
determine what was in his best interests. Even if he was suffering from
depression and stress, that does not show that his plea was involuntary. M iles v.
Dorsey, 61 F.3d 1459, 1470 (10th Cir. 1995).

                                         -11-
B. M r. Chisholm

      M r. Garcia next argues that M r. Chisholm provided ineffective assistance

during the proceedings on M r. G arcia’s motion to withdraw his guilty plea.

Specifically, M r. Garcia argues that M r. Chisholm failed to seek a continuance,

did not retain experts, did not seek an independent mental health examination of

Dolores, did not present the inconsistencies in Dolores’ statements, failed to

argue the trial court had not informed him of the nature of the charges or ensured

that there was a factual basis for the plea, relied on a baseless theory that Dolores

was taking a hallucinatory prescription medication, and informed the state court

that the prosecution had a compelling case against M r. Garcia. The state district

court found that M r. Chisholm’s performance was objectively unreasonable, but

held that his deficient performance did not prejudice M r. Garcia. Like the federal

district court, we defer to the state district court’s determination that

M r. Chisholm’s performance was deficient. W e therefore consider only whether

M r. Chisholm’s deficient performance resulted in prejudice.

      M r. Garcia believes that if M r. Chisholm’s performance had not been

deficient there is a reasonable probability that the New M exico courts would have

permitted him to withdraw his guilty plea. W e disagree. Even if M r. Chisholm

had performed as M r. Garcia asserts he should have, there is not a reasonable

probability a state court would have permitted M r. Garcia to withdraw his guilty

plea. The state district court, on habeas corpus review, heard evidence from

                                         -12-
defense experts, declined to allow an independent mental health examination of

Dolores, knew of the inconsistencies in D olores’ statements, heard the State’s

evidence against M r. G arcia, and considered the factual basis for the plea.

In other w ords, the court considered the evidence to support M r. Garcia’s

complaints against M r. Sanchez. After doing so, the court found no prejudice.

W e conclude the state court’s determination was not an unreasonable application

of Strickland and was not based upon an unreasonable determination of the facts

in light of the evidence before that court. See 28 U.S.C. § 2254(d)(1), (2).

                                         IV.

      The judgment of the district court is AFFIRM ED.


                                                     Entered for the Court



                                                     Bobby R. Baldock
                                                     Circuit Judge




                                         -13-
