Guerra v. Janecka , 602 F. App'x 725 ( 2015 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS May 12, 2015
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
LUCIANO P. GUERRA,
Petitioner - Appellant,
v. No. 14-2167
(D.C. No. 2:13-CV-00734-LH-CG)
JAMES JANECKA, Warden; GARY (D. N.M.)
K. KING, New Mexico Attorney
General,
Respondents - Appellees.
ORDER DENYING CERTIFICATE
OF APPEALABILITY
Before GORSUCH, MURPHY, and McHUGH, Circuit Judges.
This matter is before the court on Luciano P. Guerra’s pro se request for a
certificate of appealability (“COA”). Guerra seeks a COA so he can appeal the
district court’s dismissal with prejudice of his 28 U.S.C. § 2254 petition.
28 U.S.C. § 2253(c)(1)(A). Because Guerra has not “made a substantial showing
of the denial of a constitutional right,” id. § 2253(c)(2), this court denies his
request for a COA and dismisses this appeal.
A jury convicted Guerra in New Mexico state court on one count of first
degree murder. After exhausting his state court remedies, Guerra filed the instant
§ 2254 habeas petition raising the following three claims: (1) counsel failed to
investigate and present an intoxication defense; (2) his conviction was not
supported by sufficient evidence: and (3) he was entitled to a jury instruction on
his theory of self-defense. The district court resolved these claims on the merits,
concluding as follows: (1) counsel’s strategic choice to advance a self-defense
theory, instead of an intoxication defense, was not unreasonable; (2) there was
sufficient evidence to support the conviction; and (3) the jury was provided with a
self-defense instruction. In his brief on appeal and request for a COA, Guerra
does not challenge any of the district court’s conclusions summarized above.
Instead, he raises two claims not advanced below. First, he asserts he was denied
his constitutional right to compulsory process and effective assistance of counsel
because counsel failed to: (1) object when the state called Sandy Loomis as a fact
witness and (2) call Richard Rees in support of a self-defense theory. Second, he
asserts the prosecutor committed misconduct when he claimed during closing
argument that the evidence demonstrated the victim’s arm was pinned over his
head. This court does not consider claims raised for the first time on appeal.
Fairchild v. Workman, 579 F.3d 1134, 1144 (10th Cir. 2009).
Because Guerra has not asked for a COA as to the issues he raised below,
and because this court does not consider issues raised for the first time on appeal,
we DENY his request for a COA and DISMISS this appeal. Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (holding that the grant of a COA is a
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jurisdictional prerequisite to an appeal from the dismissal of a § 2254 petition).
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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