DeHerrera v. LeMaster

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 6, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
PA TRIC K D eH ER RER A,
Petitioner – Appellant,
No. 06-2135
v.
(D.C. No. 03-1020 M CA /RLP)
(D . N.M .)
TIM LeM ASTER,
Respondent – Appellee.
OR DER DENY ING A CERTIFICATE
OF APPEALABILITY
Before KELLY, M cKA Y, and LUCERO, Circuit Judges.
Patrick DeHerrera, a state prisoner, seeks a certificate of appealability
(“COA”) to appeal the district court’s denial of his 28 U.S.C. § 2254 habeas
petition. For substantially the same reasons set forth by the district court, we
D EN Y a COA and DISM ISS.
A jury convicted DeHerrera of first degree felony murder, conspiracy to
commit armed robbery, attempt to commit armed robbery, bribery of a w itness,
and conspiracy to commit bribery of a witness. He was sentenced to life in prison
plus nineteen and one-half years. The New M exico Supreme Court affirmed his
convictions on direct appeal. DeHerrera then filed a state habeas claim, which
was denied. Having exhausted his state remedies, DeHerrera filed a § 2254
petition in federal district court. The district court dismissed his petition and
denied a COA. He now seeks a COA from this court. 1
Under A EDPA, a petitioner is entitled to habeas relief only if a state court
decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States,” or “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). A
federal court “may not issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly. Rather, that application must
also be unreasonable.” W illiams v. Taylor, 529 U.S. 362, 411 (2000). W e review
a district court’s legal analysis of a state court decision de novo. Turrentine v.
M ullin, 390 F.3d 1181, 1189 (10th Cir. 2004).
1
DeHerrera’s petition was filed after April 24, 1996, the effective date of
the Antiterrorism and Effective Death Penalty Act (“AEDPA”); as a result,
AEDPA ’s provisions apply to this case. See Rogers v. Gibson, 173 F.3d 1278,
1282 n.1 (10th Cir. 1999) (citing Lindh v. M urphy, 521 U.S. 320 (1997)).
AEDPA conditions a petitioner’s right to appeal a denial of habeas relief under
§ 2254 upon a grant of a COA. 28 U.S.C. § 2253(c)(1)(A). A COA may be
issued “only if the applicant has made a substantial showing of the denial of a
constitutional right.” § 2253(c)(2). This requires DeHerrera to show “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.” Slack v.
M cDaniel, 529 U.S. 473, 484 (2000) (quotations omitted). Because the district
court denied DeHerrera a CO A, he may not appeal the district court’s decision
absent a grant of COA by this court.
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DeHerrera advances three claims for habeas relief: (1) The trial court erred
in finding that he waived his right to remain silent under M iranda v. Arizona, 384
U.S. 436, 476 (1966); (2) The trial court erred in limiting the cross-examination
of a prosecution witness; and (3) The combination of these mistakes constitutes
non-harmless cumulative error.
Focusing on three statements made to him by Albuquerque Detective Doug
Shawn, DeHerrera argues that the waiver of his M iranda rights was involuntary.
First, Shawn told DeHerrera that witness Beverly Young was “scared to death of
you,” which was apparently false. Second, Shawn stated “I know you’re not the
shooter. W e can help you out. This is the last chance you’re gonna have to help
yourself out.” Finally, Shawn informed DeHerrera that “it looks like it could be a
death penalty case,” but immediately added, “if you didn’t do it, there’s no reason
you’re going to prison.” DeHerrera denied any knowledge of the crime in
question before and after he w as read his M iranda rights.
M iranda admonishes that “any evidence that the accused was threatened,
tricked, or cajoled into a waiver will, of course, show that the defendant did not
voluntarily waive his privilege.” 384 U.S. at 476. The New M exico Supreme
Court determined that Shaw n’s conduct was not coercive. The district court
agreed, noting that DeHerrera steadfastly denied any involvement in the events at
issue. This holding is neither contrary to, nor an unreasonable application of,
federal law.
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DeHerrera next argues that his Sixth Amendment right to confront
witnesses was violated when the district court limited the cross-examination of
Phixay Detvongsa, a prosecution witness. At the scene of the crime, Detvongsa
gave police a false name because there were outstanding warrants for his arrest.
These w arrants were quashed before trial. On cross-examination, Detvongsa
stated that he had an outstanding warrant for driving while intoxicated.
DeHerrera’s counsel attempted to ask Detvongsa about a prior interview in which
he averred that he had a theft warrant outstanding. The trial court ruled that
counsel could ask the question but could not present extrinsic evidence
contradicting Detvongsa’s answer. Although counsel declined to pursue that line
of inquiry, Detvongsa later admitted to having an outstanding felony warrant.
The trial court also prevented DeHerrera’s counsel from asking Detvongsa about a
statement he made to his girlfriend – that he did not see the crime because he was
in his car. However, Detvongsa’s girlfriend later testified to this conversation.
The combined effect of these limitations, DeHerrera argues, was to prevent
him from effectively challenging Detvongsa’s credibility. W e review limits on
cross-examination “to determine whether the jury had sufficient information to
make a discriminating appraisal of the witness’ motives and bias.” United States
v. Bindley, 157 F.3d 1235, 1240 (10th Cir. 1998). Although he was prevented
from fully exploring the issue, DeHerrera was able to argue to the jury that
Detvongsa fabricated his testimony in exchange for having his warrants quashed.
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Similarly, evidence that Detvongsa made statements to his girlfriend that
conflicted with his testimony was introduced, just not in the manner D eH errera
would have preferred. The trial court’s application of federal law in limiting
Detvongsa’s cross-examination was in no way unreasonable. See United States v.
Gault, 141 F.3d 1399, 1403 (10th Cir. 1998) (“The trial court retains broad
discretion to limit cross-examination to prevent, among other things, undue
prejudice and confusion of the issues.”).
Because we find that DeHerrera’s M iranda and confrontation arguments do
not provide grounds for habeas relief, we do not reach his cumulative error claim.
For the foregoing reasons, DeHerrera’s request for a COA is DENIED and
his appeal is DISM ISSED.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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