Elijah Charles Anderson v. Tim Lemaster, Warden, and Attorney General for the State of New Mexico

149 F.3d 1190

98 CJ C.A.R. 3337

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Elijah Charles ANDERSON, Petitioner-Appellant,
v.
Tim LEMASTER, Warden, and Attorney General for the State of
New Mexico, Respondents-Appellees.

No. 97-2368.

United States Court of Appeals, Tenth Circuit.

June 23, 1998.

Before BALDOCK, EBEL and MURPHY, Circuit Judges.

1

ORDER AND JUDGMENT*

2

Elijah Charles Anderson ("Anderson") appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

3

Anderson was convicted in New Mexico state court of first-degree murder and robbery and was found to be a habitual offender. (R. Vol. 2, # 13, Ex. A.) He was sentenced to life imprisonment for the murder, plus consecutive sentences of three years for the robbery and eight years for being a habitual offender. (Id.) After exhausting his state remedies, Anderson filed a petition for a writ of habeas corpus in which he raised seven claims.1 (R. Vol. I # 1; R. Vol. I # 14 at 2.) Based on two reports and recommendations by a magistrate judge, the district court dismissed Anderson's petition with prejudice. (R. Vol. I # 23, # 28.) It denied his application for a certificate of appealability. (R. Vol. I # 31.)

4

On appeal, Anderson requests that we issue a certificate of appealability and raises four issues. Three issues are procedural--he contends that the district court erred in dismissing his petition without allowing discovery, without appointing counsel for Anderson, and without conducting an evidentiary hearing. The fourth issue appears to concern the merits of the claims he presented to the district court.

5

We do not find that Anderson has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c). Therefore, we deny a certificate of appealability and DISMISS the appeal.

6

The mandate shall issue forthwith.

*

After examining appellant's brief and the 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(f) and 10th Cir. R. 34.1.9. 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

1

Specifically, Anderson alleged: (1) his conviction was obtained in violation of his right against self-incrimination; (2) New Mexico's felony murder statute creates a presumption of mens rea; (3) he was denied due process when the trial court admitted census data over his objection; (4) he was denied due process when the trial court refused to instruct the jury on larceny as a lesser included offense of robbery; (5) the evidence was insufficient to support the verdict; (6) he suffered ineffective assistance of trial counsel; and (7) the prosecutors committed misconduct. (R. Vol. I # 1; R. Vol. I # 14 at 2.)