UNITED STATES COURT OF APPEALS TENTH CIRCUIT Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80257 (303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk December 13, 2000

TO: ALL RECIPIENTS OF THE ORDER AND JUDGMENT
RE: 00-2149, Maxwell v. Bravo, et al. Filed on November 22, 2000 The order and judgment contains a typographical err or on page two, in the first full paragraph, tenth line down from the top of the page. “Magistrate Judge Lorenzo Garza” is corrected to read “Magistrate Judge Loren zo F. Garcia.” A copy of the corrected order and judgment is attached. Sincerely, Patrick Fisher, Clerk of Court
By: Keith Nelson Deputy Clerk

encl.* After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted w ithout oral argument. This Order and Judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 22 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ANTHONY MAXWELL, Petitioner-Appellant, v. ERASMO BRAVO, Associate Warden, Lea County Correctional Facility; and ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents-Appellees. No. 00-2149 (D.C. No. CIV-99-123-JC/LFG)

(Dist. N.M.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE , Circuit Judges.
This is an appeal from a district court’s dismissal of a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and deni al of a certificate of appealability. After reviewing Appellant’s brief and the magistrate judge’s findings and recommended disposition, we conclude that Appellant has not made1 Subsequent citations to the Appeal Record will be t o “Doc. #.”

2 See Appellant’s Opening Brief at 3. - 2 - a substantial showing of the denial of a constituti onal right. See 28 U.S.C. § 2253(c)(2); Fed. R. App. Proc. 22(b). Therefore, we agree with the district court and decline to issue a certificate of appeala bility. A New Mexico jury found Appellant Anthony Maxwell g uilty of trafficking and distribution of a controlled substance. Maxwel l’s conviction was upheld on appeal. New Mexico courts denied post-conviction r elief, and he petitioned the federal district court of New Mexico for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Appeal Record, Vol. I, Doc. 1.) 1 Magistrate Judge Lorenzo F. Garcia recommended that Maxwell’s petition be denie d with prejudice (Doc. 16), and the district court adopted that recommendation. (Doc. 19.) Maxwell filed a notice of appeal (Doc. 21), and the district court declined to issue a certificate of appealability. (Doc. 22.) Maxwell raises five issues on appeal. First, he al leges that he was denied a fair trial because the jury foreperson was biased a gainst him. He maintains that the foreperson knew him since childhood and that he “had conflicts” 2with her brothers and other family members. Second, he alle ges that the trial court erred in not declaring a mistrial after a prosecution wit ness twice referred to Maxwell as a “target,” once after the trial court had admon ished the witness not to use that3 See id. at 5. - 3 -

word again. Third, at trial, Maxwell took the stan d and revealed that he had been convicted of a felony four years earlier. On habea s appeal, he asserts the trial court erred in permitting the prosecutor, on cross- examination, to elicit from Maxwell that the conviction had been for marijuana distribution. Fourth, he argues that his Fifth Amendment rights were violate d when, the day before trial, the original criminal information under which he ha d been charged was amended, changing the word “methamphetamine” to “amphetamine .” Fifth, he alleges ineffective assistance of counsel for (i) failing t o investigate an alibi, (ii) failing to move for a mistrial due to juror bias, (iii) fai ling to object when, allegedly, one or more jurors 3 were sleeping during trial, and (iv) failing to in vestigate and impeach the witness for the prosecution who testifi ed Maxwell was a “target.” Issues two, three, four, and parts (i) and (iv) of issue five were raised to the magistrate judge. Issue one was raised for the fir st time to the district court. Parts (ii) and (iii) of issue five were first raise d to this court. We agree with the district court that the magistrat e judge properly analyzed all the issues presented to it, including the issue s now on appeal to us. Furthermore, the district court considered, and rej ected, Appellant’s first argument, finding “no constitutional violation in [ Maxwell’s] attorney’s handling- 4 -

of voir dire and jury selection.” Doc. 19 at 2 (Ord er Adopting Magistrate Judge’s Findings and Recommended Disposition). As to the new claims of ineffective assistance of c ounsel, they amount to new issues on appeal. See United States v. Reyes , No. 99-5133, 2000 WL 289618, at *1 (10th Cir. March 20, 2000). Because Defendant raises these claims for the first time in this appeal, we decline to consider t hem. See United States v. Mendoza- Lopez , 7 F.3d 1483, 1485 n. 2 (10th Cir. 1993). Therefore, for substantially the reasons stated in the district court’s order and the magistrate judge’s findings and recommendeddisposition, we decline to issue a certificate of appealability. See 28 U.S.C. § 2253(c). This appeal is accordingly DISMISSED.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge