Torres v. Tapia

FILED
United States Court of Appeals
Tenth Circuit
October 4, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
JOSEPH TORRES,
Petitioner-Appellant,
v.
No. 09-2294
GEORGE TAPIA; GARY K. KING, (D.C. No. 1:08-CV-01202-WJ-LAM)
Attorney General of the State of New (D.N.M.)
Mexico,
Respondents-Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before BRISCOE, Chief Judge, and KELLY and HOLMES, Circuit Judges.
Joseph Torres, a New Mexico state prisoner appearing pro se, seeks a
certificate of appealability (“COA”) to challenge the district court’s denial of his
application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. 1 We
*
This Order is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1
and Tenth Circuit Rule 32.1.
After examining the briefs and the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
1
Mr. Torres has filed a pro se application for a COA and an opening
(continued...)
exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253(a) and conclude that Mr.
Torres fails to make a substantial showing of the denial of a constitutional right.
Thus, we deny the application for a COA and dismiss the appeal.
BACKGROUND
On December 27, 2004, Mr. Torres was convicted of possession of a
controlled substance, aggravated driving while under the influence of an
intoxicating liquor or any drug, driving with a suspended or revoked license, and
driving without proof of insurance. He was sentenced to three-and-a-half years in
prison, one year of parole, and approximately one year of supervised probation. 2
He was released from prison in September 2006.
On March 15, 2007, while on probation, Mr. Torres was charged with
aggravated battery for behavior allegedly involving a beer bottle and the repeated
kicking of someone on the ground. The state subsequently filed a motion to
revoke his probation, as well as a supplemental criminal information seeking to
enhance the applicable sentence based on his prior felony convictions. Mr. Torres
was represented by both Albert Granger and Gerald Montrose in these actions.
On August 17, 2007, Mr. Torres entered into a plea agreement. Within a
1
(...continued)
brief. We construe these pro se filings liberally. See Erickson v. Pardus, 551
U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d 1151, 1153 n.1
(10th Cir. 2007).
2
The state district court suspended approximately one year of Mr.
Torres’s sentence.
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few days, however, Mr. Torres filed a pro se motion to withdraw this plea
agreement. In the motion, Mr. Torres claimed that he was pressured into signing
the plea agreement because Mr. Granger was not prepared for trial, did not
contact a key witness, and did not ask for a continuance. Mr. Torres eventually
decided not to prosecute this motion and was sentenced to seven years in prison, 3
two years of parole, and three years of supervised probation. 4 Although Mr.
Torres filed a state petition for a writ of habeas corpus, the state district court
summarily dismissed the petition on the merits. The New Mexico Supreme Court
denied his petition for certiorari.
On December 29, 2008, Mr. Torres filed an application for a writ of habeas
corpus with the federal district court. In general, Mr. Torres argued that (1) he
was deprived of effective assistance of counsel because Mr. Granger “failed to
investigate, interview or subpoena witnesses who would have shown that [he]
acted in self-defense,” “pressured [him] into signing the plea agreement,” and
“failed to file pretrial motions or to prepare for trial,” R. at 293 (Magistrate
Judge’s Proposed Findings and Recommended Disposition, filed Sept. 15, 2009
(citing R. at 10 (Appl. for Writ of Habeas Corpus, filed Dec. 29, 2008)); (2) he
was deprived of the effective assistance of counsel because Mr. Montrose, inter
3
The state district court suspended three years of Mr. Torres’s
sentence.
4
In the related action, the state district court dismissed the
supplemental criminal information and discharged Mr. Torres from probation.
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alia, “refused to represent [him] in his motion to withdraw the plea agreement”
and “misrepresented to [him] that if [he] dropped his motion to withdraw his plea
agreement, he would only have to serve 50% of a four-year sentence . . . instead
[of] . . . serving 85% of a four-year sentence,” id. at 294 (citing R. at 14–15); and
(3) it was a conflict of interest to have Mr. Montrose reappointed as his counsel.
The magistrate judge recommended that the district court deny the habeas
application. After considering Mr. Torres’s objections, the district court adopted
the recommendation and denied the application. The district court also denied
several motions, including a motion for an evidentiary hearing. Mr. Torres now
appeals.
DISCUSSION
“A COA is a jurisdictional pre-requisite to our review.” Clark v.
Oklahoma, 468 F.3d 711, 713 (10th Cir. 2006) (citing Miller-El v. Cockrell, 537
U.S. 322, 336 (2003)). A COA will issue only “if the applicant has made a
substantial showing of the denial of a constitutional right.” United States v. Silva,
430 F.3d 1096, 1100 (10th Cir. 2005) (quoting 28 U.S.C. § 2253(c)(2)) (internal
quotation marks omitted). This standard requires an applicant to 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, 537 U.S. at 336 (internal quotation marks omitted). In determining
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whether to grant a COA, we need not engage in a “full consideration of the
factual or legal bases adduced in support of the claims.” Id. We instead
undertake “a preliminary, though not definitive, consideration of the [legal]
framework” applicable to each claim. Id. at 338. Although an applicant is not
required to demonstrate that his appeal will succeed, he must “prove something
more than the absence of frivolity or the existence of mere good faith.” Id.(internal quotation marks omitted).
If the state court addresses the merits of the applicant’s claims, “AEDPA’s
deferential treatment of state court decisions must be incorporated into our
consideration of [his] request for [a] COA.” Dockins v. Hines, 374 F.3d 935, 938
(10th Cir. 2004). Under the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), we may grant an application for a writ of habeas corpus on
behalf of a person in state custody whose claims were adjudicated on the merits in
state court only if the state court’s decision (1) “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” or (2) “was 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).
On appeal, Mr. Torres requests a COA on several issues related to his
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allegations regarding ineffective assistance of counsel. 5 He also claims that the
federal magistrate judge was biased and that the district court should have held an
evidentiary hearing.
I. Ineffective Assistance of Counsel
Mr. Torres claims that he was denied his Sixth and Fourteenth Amendment
right to the effective assistance of counsel. As a threshold matter, we note that
Mr. Torres failed to preserve several issues for appeal. 6 We focus our discussion
5
Mr. Torres may not have exhausted his state-court remedies with
respect to certain claims of ineffective assistance of counsel. Although Mr.
Torres raised most of his ineffective-assistance-of-counsel claims in his state
habeas petition, he neglected to raise some of them in his state petition for
certiorari and failed to raise one of his claims in either petition. Nevertheless, the
state expressly waived the exhaustion requirement through counsel. R. at 86
(Answer, filed Mar. 13, 2009) (“Respondents submit that Petitioner exhausted the
claims raised in the Petition. The various claims were raised in the state habeas
corpus proceedings and denied by the New Mexico Supreme Court.”); see 28
U.S.C. § 2254(b)(3); Gonzales v. McKune, 279 F.3d 922, 926 & n.8 (10th Cir.
2002) (en banc) (“More significantly, the State ‘expressly waived,’ § 2254(b)(3),
the exhaustion requirement as to all other issues addressed in the panel opinion. .
. . The State, correctly addressing the exhaustion issue in its answer to the habeas
petition, ‘admitted that petitioner has properly exhausted the issues now presented
to this Court.’”). The magistrate judge recommended that the district court
exercise its discretion to deny the habeas application on the merits. See 28 U.S.C.
§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the remedies
available in the courts of the State.”); Williams v. Jones, 571 F.3d 1086, 1089
(10th Cir. 2009) (per curiam) (“[A] habeas petition may be denied despite a
failure to exhaust.”), cert. denied, 130 S. Ct. 3385 (2010). The district court, in
effect, did so by adopting the recommended disposition. We conclude that
reasonable jurists could not debate the correctness of the district court’s
conclusion.
6
First, Mr. Torres waived his argument that Mr. Granger provided
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only on the claims that are properly before us.
To prevail on a claim of ineffective assistance of counsel, a habeas
petitioner must demonstrate, by a preponderance of the evidence, that (1) his
6
(...continued)
ineffective assistance of counsel by failing to investigate, interview, or subpoena
a witness who would have shown that Mr. Torres acted in self-defense. The
district court found that Mr. Torres did not satisfy the prejudice prong of
Strickland v. Washington, 466 U.S. 668 (1984) because he “fail[ed] to allege that,
if the witness had been interviewed, [he] would not have pled guilty.” R. at 344
(Order Adopting Magistrate Judge’s Proposed Findings and Recommended
Disposition, filed Oct. 30, 2009). Although Mr. Torres now alleges that he would
have exercised his right to trial if Mr. Granger had investigated and subpoenaed
the witness, he waived this argument because he did not assert prejudice before
the district court. See Parker v. Scott, 394 F.3d 1302, 1307 (10th Cir. 2005)
(concluding that a habeas petitioner waived any claims that he did not raise before
the district court).
Second, Mr. Torres waived his argument that Mr. Granger provided
ineffective assistance of counsel by failing to file pretrial motions, failing to
prepare for trial, and pressuring him into signing the plea agreement. Mr. Torres
failed to preserve these arguments on appeal because he did not raise them as
objections to the magistrate judge’s recommendation. See Port City Props. v.
Union Pac. R.R., 518 F.3d 1186, 1190 n.1 (10th Cir. 2008) (holding that a party
waived an issue he did not raise in his objection to the magistrate judge’s
recommendation). At most, Mr. Torres’s objection raised a vague argument that
Mr. Granger “[d]id nothing to [d]efend the [d]efendant.” R. at 319 (Objection,
filed Sept. 23, 2009); accord R. at 324 (Amended Objection, filed Oct. 5, 2009).
But vague arguments are insufficient to preserve issues for appeal. See United
States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996) (holding that “a
party’s objections to the magistrate judge’s report and recommendation must be
both timely and specific to preserve an issue for . . . appellate review.” (emphasis
added)).
Finally, Mr. Torres alleges that Mr. Montrose refused to represent him in
his motion to withdraw the plea agreement. Appl. for COA at 3, 4, 6, 7; Aplt. Br.
at 3, 6, 9. Because Mr. Torres failed to raise this argument as an objection to the
magistrate judge’s recommendation, he did not preserve it on appeal. See Port
City Props., 518 F.3d at 1190 n.1.
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attorney’s performance fell below an objective standard of reasonableness, and
(2) he was prejudiced by the attorney’s deficient performance. Strickland, 466
U.S. at 692–93. A petitioner may satisfy the prejudice prong by demonstrating
that “there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart,
474 U.S. 52, 59 (1985).
Mr. Torres contends that Mr. Montrose provided ineffective assistance of
counsel. In particular, Mr. Torres claims that Mr. Montrose promised that if he
dropped his motion to withdraw his plea agreement, he would only have to serve
fifty percent of his sentence instead of eighty-five percent. The district court
concluded that the state district court’s rejection of this claim was neither
contrary to nor an unreasonable application of “clearly established Federal law, as
determined by the Supreme Court,” nor was it based on an “unreasonable
determination of the facts in light of the evidence presented.” 28 U.S.C. §
2254(d)(1)–(2). In reaching this determination, the district court adopted the
thorough reasoning of the magistrate judge. The magistrate judge found that the
record contained no evidence of an agreement to a certain sentence, the sentence
was consistent with the state statute governing earned meritorious deductions, and
the state court lacked the discretion to set the rate of good-time credits. Based on
these conclusions, no reasonable jurist could debate whether the district court
should have resolved this claim in a different manner.
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II. Conflict of Interest
Mr. Torres also claims that he was denied his Sixth and Fourteenth
Amendment right to the effective assistance of counsel because the state court
reappointed Mr. Montrose as his attorney. A conflict of interest “demonstrate[s]
a denial of the right to have the effective assistance of counsel.” Cuyler v.
Sullivan, 446 U.S. 335, 349 (1980) (internal quotation marks omitted). If an
applicant “shows that a conflict of interest actually affected the adequacy of his
representation,” he “need not demonstrate prejudice in order to obtain relief.” Id.at 349–50. An applicant must show “that his counsel actively represented
conflicting interests” and not merely “the possibility of conflict.” Id. at 350.
Mr. Torres claims that Mr. Montrose was reappointed as his attorney, even
though a state-court judge had ordered the public defender’s office to provide a
different attorney. Although the state district court rejected this claim without
discussion, the federal district court properly concluded that the rejection of this
claim was neither contrary to nor an unreasonable application of “clearly
established Federal law, as determined by the Supreme Court,” nor was it based
on an “unreasonable determination of the facts in light of the evidence presented.”
28 U.S.C. § 2254(d)(1)–(2). In reaching this determination, the district court
again adopted the reasoning of the magistrate judge. The magistrate judge
rejected Mr. Torres’s argument because the record contains no evidence that Mr.
Montrose was ever “reappointed” or that any alleged conflict of interest affected
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the adequacy of the representation. Based on these conclusions, no reasonable
jurist could debate whether the district court should have resolved this claim in a
different manner.
III. Bias
Mr. Torres claims that the federal magistrate judge exhibited bias against
him with respect to the conflict-of-interest issue. “The Due Process Clause
entitles a person to an impartial and disinterested tribunal in both civil and
criminal cases.” United States v. Nickl, 427 F.3d 1286, 1298 (10th Cir. 2005)
(quoting Marshall v. Jerrico, Inc., 446 U.S. 238, 242 (1980)) (internal quotation
marks omitted). “To demonstrate a violation of due process because of judicial
bias, a claimant must show either actual bias or an appearance of bias.” Bixler v.
Foster, 596 F.3d 751, 762 (10th Cir. 2010) (quoting Nickl, 427 F.3d at 1298)
(internal quotation marks omitted); cf. 28 U.S.C. § 455(a) (requiring a judge to
recuse himself “in any proceeding in which his impartiality might reasonably be
questioned”). “The standard is purely objective, and [t]he inquiry is limited to
outward manifestations and reasonable inferences drawn therefrom.” United
States v. Gambino-Zavala, 539 F.3d 1221, 1228 (10th Cir. 2008) (alteration in
original) (quoting Nickl, 427 F.3d at 1298) (internal quotation marks omitted).
In this action, Mr. Torres contends that he was denied his right to an
impartial tribunal because the magistrate judge (1) ignored clear evidence in
reviewing the state-court transcripts, and (2) resides in the state judicial district
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where some of the underlying events took place. These allegations are
insufficient to show actual bias or an appearance of actual bias. The magistrate
judge’s ruling on the transcripts is not enough because “[a]dverse rulings alone do
not demonstrate judicial bias.” Bixler, 596 F.3d at 762. Mr. Torres also provides
no evidence whatsoever to support his claim of bias resulting from the magistrate
judge’s residence. Thus, we conclude that Mr. Torres has failed to show a
deprivation of his due process rights.
IV. Evidentiary Hearing
Mr. Torres appeals the district court’s denial of his request for an
evidentiary hearing with respect to the conflict-of-interest issue. We decline to
reach this challenge because Mr. Torres waived his request for a hearing.
Although Mr. Torres requested an evidentiary hearing before the state court, he
neglected to renew this request in his federal habeas application or in a
contemporaneous filing with the federal district court. Mr. Torres instead filed
motions for additional state-court records, recordings, and transcripts, which the
magistrate judge properly denied because Mr. Torres failed to demonstrate a
particularized need for them. R. at 313–14 (citing Jackson v. Turner, 442 F.2d
1303, 1305 (10th Cir. 1971) and Ruark v. Gunter, 958 F.2d 318, 319 (10th Cir.
1992)); accord R. at 346, 347 (adopting the magistrate judge’s recommendation).
Because Mr. Torres requested an evidentiary hearing only after the
magistrate judge had entered her proposed findings and recommended disposition,
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he waived this request. See Duncan v. Barreras, No. 98-2289, 1999 U.S. App.
LEXIS 31397, at *8 n.1 (10th Cir. Dec. 1, 1999) (“By waiting until after the
magistrate judge had entered his proposed findings and recommended disposition,
petitioner waived his right to an evidentiary hearing.”).
CONCLUSION
For the foregoing reasons, we DENY Mr. Torres’s application for a COA and
DISMISS his appeal.
ENTERED FOR THE COURT
Jerome A. Holmes
Circuit Judge
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