DocketNumber: No. 01-2318
Citation Numbers: 53 F. App'x 496
Judges: Brien
Filed Date: 11/20/2002
Status: Precedential
Modified Date: 7/25/2022
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.
Richard J. Montoya appeals from the district court’s order denying his 28 U.S.C. § 2254 petition for a writ of habeas corpus. In order for Montoya to proceed on appeal, we must grant him a certifícate of appealability (COA). Id. § 2253(c)(1)(A). A COA will only issue “if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). We grant COA, but affirm the order denying Montoya’s habeas petition.
A New Mexico jury convicted Montoya of armed robbery and felony murder. The state district court sentenced him to life imprisonment for the felony murder and nine years for the armed robbery, to be served consecutively. Both crimes resulted from a drug deal gone bad, in which either Montoya or his accomplice, David Munoz, shot and killed Robert Larson, an undercover narcotics officer.
The state theorized that the shooting arose from an attempt by Montoya and Munoz to rob Larson at gunpoint. Montoya argued that he had not robbed Larson. Instead, he claimed, Larson made a homosexual advance toward him during the drug deal and then pulled out a gun when Montoya resisted. Montoya contended that the conflict then escalated and Munoz shot Larson in an act of third-party self-defense.
Montoya raises two Sixth Amendment claims. His first claim involves an alleged conflict of interest. Montoya contends that Larson’s ex-wife would have testified if called at trial concerning Larson’s homosexuality and illegal narcotics activities. He asserts that his counsel did not call Mrs. Larson because counsel had previously represented Mrs. Larson in her divorce from Mr. Larson and had an obligation to her not to reveal confidential information about Mr. Larson received during the course of that representation.
Montoya contends that the district court erred in failing to grant him an evidentiary hearing on this issue. He did not develop the factual basis for this claim in state court, a defect which ordinarily imposes a bar to a federal evidentiary hearing. See 28 U.S.C. § 2254(e)(2). Montoya asserts, however, that he was improperly denied an evidentiary hearing in state court in spite of his diligent efforts to obtain one. See Williams v. Taylor, 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (stating evidentiary hearing is not barred by § 2254(e)(2) where petitioner is unable to develop claim in state court despite diligent effort).
Even assuming he was improperly denied an evidentiary hearing in state court, Montoya is not entitled to a federal evidentiary hearing. We may grant him such a hearing only if his allegations, if true and not contravened by the record, entitle him to habeas relief. Walker v. Gibson, 228 F.3d 1217, 1231 (2000), cert. denied, 533 U.S. 933, 121 S.Ct. 2560, 150 L.Ed.2d 725 (2001). As will be seen, his allegations fail to meet this standard.
Evidence of Larson’s alleged homosexuality and illegal drug activities was only relevant to the first-stage issues in this case
Montoya’s testimony about the alleged homosexual advance was not corroborated by David Munoz, the only other witness in the motel room where Larson was killed. Other witnesses testified, however, that Montoya had stated before the shooting that he intended to “burn” Larson, and afterwards that he had “burned” Larson. It is uncontested that Montoya took a gun with him into the hotel room where Larson was killed. Under the circumstances, additional evidence about Larson’s alleged homosexual propensities or illegal drug use was not reasonably likely to have changed the outcome of Montoya’s trial. He fails to show his entitlement to an evidentiary hearing or to habeas relief on this issue.
In his second issue, Montoya contends that his appellate attorney was constitutionally ineffective in failing to raise a claim that his convictions and consecutive sentences for felony murder and armed robbery violated double jeopardy. At the
Although Contreras was decided more than a decade after Montoya’s direct appeal was concluded, Montoya argues that his attorney could have anticipated the arguments that caused the New Mexico Supreme Court to change course and made them in his own case. Contreras, however, relied heavily on Swafford v. State, 112 N.M. 3, 810 P.2d 1223 (1991), a case not decided until many years after Montoya’s appeal. Swafford, in turn, relied on Grady v. Corbin, 495 U.S. 508, 518, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990), a Supreme Court case also decided long after Montoya’s appeal. Montoya’s argument, that his appellate counsel could have anticipated and argued for this “new rationale,” is unconvincing. “[Clairvoyance is not a required attribute of effective representation.” United States v. GonzalezLerma, 71 F.3d 1537, 1542 (10th Cir.1995).
Montoya’s application for COA is GRANTED. The judgment of the United States District Court for the District of New Mexico is AFFIRMED.
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.
. Montoya faced the death penalty in this case, but the jury did not award it and there are no second-stage sentencing issues in this appeal.