Richwine v. Romero ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
August 16, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RICHARD D. RICHWINE,
Plaintiff - Appellant, No. 12-2062
v. D. New Mexico
ANTHONY ROMERO, Warden, (D.C. No. 1:09-CV-00870-JB-GBW)
Defendant - Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before MURPHY, BALDOCK, and HARTZ, Circuit Judges.
Proceeding pro se, Richard D. Richwine seeks a certificate of appealability
(“COA”) from this court so he can appeal the district court’s denial of his 28
U.S.C. § 2254 habeas petition. See 28 U.S.C. § 2253(c)(1)(A) (providing that no
appeal may be taken from a final order disposing of a § 2254 petition unless the
petitioner first obtains a COA). Because Richwine has not “made a substantial
showing of the denial of a constitutional right,” this court denies his request for a
COA and dismisses this appeal. Id. § 2253(c)(2).
Richwine was convicted by a New Mexico jury of trafficking controlled
substances, possession of marijuana, and use or possession of drug paraphernalia.
He was sentenced to concurrent terms of nine years’ imprisonment on the
trafficking conviction, fifteen days’ imprisonment on the marijuana conviction,
and 364 days’ imprisonment on the paraphernalia conviction. Richwine appealed,
alleging (1) the evidence was insufficient to support his convictions, (2) he should
not have been convicting of trafficking a controlled substance because he was
originally charged with manufacturing a controlled substance, (3) the trial court
erred by denying his motion to continue his sentencing, (4) the trial judge was
biased against him, and (5) the trial court erred by admitting photographs of
alleged paraphernalia used to produce crack cocaine. After first denying
Richwine’s motion to amend his docketing statement to add claims of ineffective
assistance of counsel, the New Mexico Court of Appeals affirmed Richwine’s
convictions and sentence. The New Mexico Supreme Court denied Richwine’s
petition for writ of certiorari.
Richwine then filed a state petition seeking post-conviction relief. In this
state habeas petition, Richwine alleged (1) prosecutorial misconduct, (2) multiple
instances of ineffective assistance of counsel, and (3) judicial bias and abuse of
discretion. The petition was denied by the state district court and Richwine’s
petition for writ of certiorari was denied by the New Mexico Supreme Court.
Proceeding pro se, Richwine filed the instant § 2254 habeas application on
September 9, 2009. In the petition, Richwine raised all the claims previously
raised either on direct appeal or in his state post-conviction petition. He also
raised four additional claims of ineffective assistance of counsel, alleging trial
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counsel failed to (1) file a motion to recuse the trial judge, (2) challenge several
allegedly biased jurors, (3) rebut the prosecution’s statements about his prior
criminal history, and (4) investigate and rebut the prosecution’s statements about
his financial status. A federal magistrate judge addressed each of Richwine’s
claims in a comprehensive report and recommendation. The district court
considered Richwine’s written objections to the report and recommendation, 1 but
adopted the magistrate judge’s recommendation and dismissed Richwine’s § 2254
petition.
As to the claims that were previously adjudicated by the New Mexico state
courts, the district court reviewed those claims under the standard set out in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), concluding the state
courts’ adjudication was not contrary to, nor an unreasonable application of
clearly established federal law. 2 28 U.S.C. § 2254(d). Because the four
unexhausted new claims of ineffective assistance of counsel had not been
presented to the state court, the federal district court reviewed them de novo. See
28 U.S.C. § 2254(b)(2) (providing federal court can deny on the merits
1
The district court concluded Richwine’s objections included four claims
that were waived because they were raised for the first time in the objections. See
United States v. Garfinkle, 261 F.3d 1030, 1031 (10th Cir. 2001) (“In this circuit,
theories raised for the first time in objections to the magistrate judge’s report are
deemed waived.”).
2
The court concluded Richwine’s claim his trial attorney failed to conduct
an adequate investigation wholly lacked a factual basis and his claim counsel
failed to request a lesser-included instruction was controverted by the record.
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unexhausted habeas claims). The court denied relief on all four claims,
concluding the record contained no factual support for one claim and Richwine
was not able to meet either the performance or prejudice prongs of Strickland as
to the other three claims. See Strickland v. Washington, 466 U.S. 668, 677-78
(1984).
Richwine also raised a claim that he is receiving inadequate legal material
in prison. The district court concluded this claim must be brought under 42
U.S.C. § 1983 and, accordingly, dismissed it without prejudice.
To be entitled to a COA, Richwine must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the requisite
showing, he must demonstrate “that reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quotations
omitted); see also Slack v. McDaniel, 529 U.S. 474, 484-85 (2000) (holding that
when a district court dismisses a habeas petition on procedural grounds, a
petitioner is entitled to a COA only if he shows both that reasonable jurists would
find it debatable whether he had stated a valid constitutional claim and debatable
whether the district court’s procedural ruling was correct). In evaluating whether
Richwine has satisfied his burden, this court undertakes “a preliminary, though
not definitive, consideration of the [legal] framework” applicable to each of his
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claims. Miller-El, 537 U.S. at 338. Although Richwine need not demonstrate his
appeal will succeed to be entitled to a COA, he must “prove something more than
the absence of frivolity or the existence of mere good faith.” Id. (quotations
omitted).
This court has reviewed Richwine’s appellate brief and application for
COA, the Report and Recommendation, the district court’s order, and the entire
record on appeal pursuant to the framework set out by the Supreme Court in
Miller-El and concludes Richwine is not entitled to a COA. The district court’s
resolution of Richwine’s habeas application is not reasonably subject to debate
and his claims are not adequate to deserve further proceedings. Accordingly,
Richwine has not “made a substantial showing of the denial of a constitutional
right” and is not entitled to a COA. 28 U.S.C. § 2253(c)(2).
This court denies Richwine’s request for a COA and dismisses this appeal.
ENTERED FOR THE COURT
Michael R. Murphy
Circuit Judge
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