Archuleta v. Shanks ( 2000 )


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  •                                                                         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    This order and judgment is not binding precedent, except under the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.
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    (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
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