* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### APR 2 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

CHRISTOBAL (LIBBY) VIGIL,

Petitioner-Appellant,

v. JOHN SHANKS; ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents-Appellees. No. 96-2025 (D.C. No. CIV-92-537-M) (D.N.M.)

ORDER AND JUDGMENT *

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.-2-

Petitioner-appellant Christobal (Libby) Vigil appea ls the district court’s denial of his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. We affirm. Petitioner was convicted of trafficking cocaine andconspiracy to traffic cocaine and was sentenced to nine years’ incarcerat ion. The convictions were based on evidence seized from his home pursuant to a search warrant. Prior to trial, petitioner moved for suppression of the seiz ed evidence, alleging that the affidavit upon which the warrant issued did not sho w probable cause, did not establish the sources of the information contained therein, and was not made from personal knowledge but from hearsay. At the suppre ssion hearing, petitioner’s counsel argued specifically that the evidence shoul d be suppressed based on the lack of reliability of the police informant. The t rial court denied the motion, finding that the two controlled buys described in the affidavit, in and of themselves, would provide probable cause, and that the additional allegations simply added to the strength of the probable cause showing. On appeal to the New Mexico Court of Appeals, petit ioner argued that the evidence should have been suppressed for several re asons, including the lack of independent evidence to corroborate the reliabilityof the informant. He also argued that the evidence was insufficient to support the convictions, and that his trial attorney was ineffective in failing to objectto the procedure used after the-3-

jury returned inconsistent jury forms. The court o f appeals summarily affirmed, noting that information supplied by an informant mu st be sufficiently corroborated to establish the informant’s credibili ty, and finding the controlled buys and the independent Crimestoppers’ tips suffic ient to establish probable cause. The court also found the evidence sufficien t to support the convictions and that petitioner had not shown that his attorney was ineffective. The New Mexico Supreme Court denied review. Petitioner filed a petition for a writ of habeas co rpus with the New Mexico state court, making essentially the same arguments. The petition was denied, and certiorari review was refused. Petitioner then filed this federal petition for wri t of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that failure to suppr ess the seized evidence violated his Fourth Amendment rights, that his trial attorne y was ineffective in failing to argue certain theories and make certain objections, and that the evidence was insufficient to support his convictions. A magistr ate judge recommended the petition be denied, finding that New Mexico had giv en petitioner a full and fair opportunity to challenge the search, that petitione r’s trial counsel was not ineffective, and that the evidence was sufficient t o support the convictions. The district court adopted the report and recommendatio n, and this appeal followed.1 On April 24, 1996, while this case was pending, the President signed into

law the Antiterrorism and Effective Death Penalty A ct of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. The AEDPA amended the standards for reviewing § 2254 claims which were adjudicated on their merit s in state court. We need not decide whether these new standards apply retroactiv ely to pending cases because, even under the older, more liberal standards, petit ioner cannot prevail. See Houchin v. Zavaras , No. 96-1187, 1997 WL 81157, at *5 (10th Cir. Feb. 27, 1997). -4- In reviewing the denial of habeas corpus relief, we review the district court's factual findings for clear error, and its l egal conclusions de novo. See Matthews v. Price , 83 F.3d 328, 331 (10th Cir. 1996). Petitioner ar gues first that his Fourth Amendment rights were violated because the New Mexico courts failed to apply correct constitutional standards in determ ining whether the evidence should be suppressed. The district court found that the state courts applied correct constitutional standards and accorded petit ioner a full and fair opportunity to litigate the suppression claim in state court, t hus foreclosing federal review. We review this determination de novo. 1 See Miranda v. Cooper , 967 F.2d 392, 401 (10th Cir. 1992). A state prisoner is precluded from litigating Fourth Amendment claims in a federal habeas proceeding if he was accorded a full and fair opportunity to litigate such claims in state court. See Stone v. Powell , 428 U.S. 465, 494 (1976). We see no evidence that petitioner was denied such an opportunity. The state courts were apprised of petitioner’s claims regarding the reliability of the police-5-

informant, but found nevertheless that the facts co ntained in the affidavit established probable cause. Their analysis shows that they considered the totality of the circumstances in making this determination, even if they did not analyze each fact contained in the affidavit separately. Petitioner argues next that he was denied effective assistance of counsel at trial. We review an ineffectiveness of counsel cla im de novo, as it presents a mixed question of law and fact. See Davis v. Executive Dir. of Dep’t of Corrections , 100 F.3d 750, 759 (10th Cir. 1996). Because ther e is a strong presumption that counsel acted reasonably and repre sented his client effectively, we review counsel's performance with substantial de ference. Id. To establish a claim of ineffective assistance of c ounsel, petitioner must show first that counsel committed such serious erro rs, in light of prevailing professional norms, that the representation fell be low an objective standard of reasonableness. See Strickland v. Washington , 466 U.S. 668, 687-88 (1984). Petitioner then must show that his defense was prej udiced by counsel’s errors.
See id. at 687. We refrain from using hindsight to second -guess counsel’s tactical decisions. See id. at 689. Here, petitioner identifies as error tactical decis ions made by his attorney. He does not show, however, that these decisions fel l outside “the wide range of reasonable professional assistance,” or that such d ecisions could not be-6-

“considered sound trial strategy.” Id. at 689. Nor has he shown that such decisions prejudiced his defense, speculating only that the defense may have been successful had different choices been made. For th is reason, and for the reasons stated in the magistrate judge’s report and recomme ndation, we conclude petitioner failed to establish that his trial attor ney was ineffective. Finally, petitioner argues that the evidence was in sufficient to establish his possession of the cocaine and drug-dealing paraphernalia. We review the record for sufficiency of the evidence de novo. United St ates v. Wilson , No. 96-3062, 1997 WL 71659, at *2 (10th Cir. Feb. 20, 1997). “E vidence is sufficient to support a conviction if a reasonable jury could fin d the defendant guilty beyond a reasonable doubt, given the direct and circumstanti al evidence, along with reasonable inferences therefrom, taken in a light m ost favorable to the government.” Id. (quotations omitted). After reviewing the record, we conclude the evidenc e was sufficient to permit a reasonable jury to find that petitioner ha d, at the least, constructive possession of the cocaine. Constructive possessionmay be found when a person “knowingly has ownership, dominion or control over the narcotics and the premises where the narcotics are found,” so long as the evidence shows “a sufficient nexus between the defendant and the narc otics.” Id . at *3 (quotations omitted). Here, the search of petitioner’s home re vealed almost seventy grams of-7-

cocaine in various parts of the house. Further, th e cocaine and distribution evidence were found next to petitioner’s personal i tems, in areas where petitioner had been moments earlier, or in areas under petitio ner’s control. For example, police found next to petitioner’s jewelry a mirror with lines of cocaine, a razor blade, and a straw. Near petitioner’s wallet, whic h contained over $3,100 in cash, police located a scale, numerous large and small bi ndles of cocaine, cutting agents, and baggies. In the bathroom, where petiti oner had been moments before the search, police discovered a list of names and m oney amounts. Finally, police located unfilled bindles for cocaine in the downsta irs kitchen, undermining petitioner’s theory that the cocaine belonged to co nstruction workers who were remodeling the upstairs. Based on this evidence, areasonable jury could find petitioner guilty of the crimes for which he was co nvicted. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

Bobby R. Baldock Circuit Judge