UNITED STATES COURT OF APPEALS TENTH CIRCUIT

JIMMY J. HOLT, Petitioner-Appellant,

v. ERASMO BRACO, Warden, GARY K. KING, Attorney General for the State of New Mexico Respondents-Appellees. No. 10-2201 (D.C. No. 09-CV-00834) (D. N.M.)

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before KELLY , EBEL and LUCERO , Circuit Judges.

Jimmy J. Holt, a pro se New Mexico st ate prisoner convicted of one count of cocaine trafficking, seeks a certificate of a ppealability (COA) so that he may challenge the district court’s denial of his 28 U.S.C. § 2254 petition fo r a writ of habeas corpus. Exercising jurisdiction under 28 U.S.C. §§ 12 91 and 2253(a), we conclude that Holt has failed to make a substantial s howing of the denial of a cons titutional right. Accordingly, we deny his request for a COA and dismiss this appeal. FILED United States Court of Appeals Tenth Circuit 

### March 25, 2011
Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND On October 13, 2006, Holt entered a guilty plea pursuant to a plea agreement in New Mexico state court. Holt pled guilty to one count of cocaine trafficking, a seconddegree felony, and in exchange the state dism issed three other counts against him. On March 21, 2007, the state court sentenced Holt to a term of ni ne years, with five years suspended. The court also gave Holt credit for time served in the amount of eight hundred and two days, and the remainder of his sentence was suspended. Holt was placed on probation for five years, three of which were to be supervised and two unsupervised. Finally, Holt was to abide by standard probation conditions, which included participating in the STEPS program. While on probation, Holt signed an Order of Probation in which he agreed, inter alia , “to not associate with any person identif ied by [his] Probation/Parole Officer as being detrimental to [his] Probation supervis ion, which may include persons having a criminal record, other probationers and parol ees, and victims or witnesses of [his] crime or crimes.” (Report and Recommendation at 3.) On May 19, 2008, Holt was arrested on new charges of trafficking crack cocaine and conspiracy. A motion was filed to revoke Holt’s probation, and the court held a he aring on September 16, 2008. During the hearing, the court received testimony from Holt’s probation officer concerning Holt’s association with a felon on probation, Sand ra Miller. The court also reviewed a letter sent from one of Holt’s friends to Miller, in which the friend aske d Miller, “Why didn’t you tell him you were on pr obation?” In that letter, Miller replied, “I don’t tell anybody3 I’m on probation.” Finally, the court reviewed a police report concerning an exchange of crack cocaine between Holt and Miller, which le d to the new charges. Based on that, the court revoked Holt’s probation for associating with a felon on probation and sentenced him to serve the remainder of his term. Holt filed two state habeas corpus petiti ons, which were both denied. Then, on August 28, 2009, proceeding pr o se, Holt petitioned the federal district court for habeas relief. Holt raised four grounds for relief: (1 ) the ineffective assist ance of counsel caused him to enter into an involuntar y plea; (2) the state court deni ed him confrontation at the probation revocation hearing; (3) the judge ille gally participated in the plea discussions; and (4) the time limits of New Mexico Rule of Criminal Procedure 5-805 were violated. A magistrate judge recommended denying the petition, and the di strict court adopted that recommendation. Holt now seeks a COA from this Court. II. DISCUSSION A. Unless an applicant obtains a COA, we lack jurisdiction to consider the merits of a habeas appeal. 28 U.S.C. § 2253(c)(1)(A). We may issue a COA “only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Where a district court has rejected a petitio ner’s constitutional cl aim on the merits, the petitioner “must demonstrate th at reasonable jurists would find the district court’s assessment of the constitutional claims de batable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000).4 Because Holt’s federal habeas petition was filed after the effective date of the Antiterrorism and Effective Deat h Penalty Act of 1996 (AEDPA ), it is also governed by those provisions. Wallace v. Ward , 191 F.3d 1235, 1240 (10t h Cir. 1999), modified on other grounds , McGregor v. Gibson , 248 F.3d 946 (10th Cir. 2 001). “Under the AEDPA, the appropriate standard of review for a par ticular claim is dictated by the treatment of that claim by the state courts.” Hain v. Gibson , 287 F.3d 1224, 12 29 (10th Cir. 2002). “If a claim was not decided on the merits by the state courts (and is not otherwise procedurally barred), we may exercise our i ndependent judgment in deciding the claim.” Id. “In doing so, we review the federal district court’s conclusions of law de novo and its findings of fact, if any, for clear error.” Id. “If a claim was adjudicated on its merits by the state courts, the petitioner will be entitled to federal habeas re lief only if he can establish that the state court decision ‘was contrary to, or involv ed an unreasonable application of, clearly established Federal la w, as determined by the Supreme Court of the United States,’ 28 U.S.C. § 2254(d)(1 ), or ‘was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding[,]’ Id. § 2254(d)(2).” Id. In this case, the New Mexico state c ourts twice denied Holt’s state habeas petitions. One of those times, the court summar ily disposed of Holt ’s claim. But we cannot tell from the record before us whether the court al so summarily disposed of his claims the second time or addr essed the merits of Holt’s ar guments. Therefore, we will5 review the district court’s legal conclusion s de novo and its fact ual findings for clear error without applying AEDPA deference.
B. Holt argues his counsel was ineffective fo r failing to obtain a plea agreement that reflected Holt’s understanding. Holt conten ds that his attorney used threats and intimidation to force him to sign that plea agreem ent. In particular, Holt contends that his attorney told him that if he did not sign the plea agreement, a warrant would be issued for his arrest. Finally, Holt explains that ther e was a five-month delay between the time that his counsel signed the plea agreement and th e time that he signed the plea agreement. Holt posits that this delay was part of a “preconceived” scheme. In order to establish ineffective assistan ce of counsel, a pe titioner must show both deficient performance and prejudic e. Strickland v. Washington , 466 U.S. 668, 691 (1984). To show deficient performance, a petitioner must demonstrate that counsel’s performance “fell below an objective standa rd of reasonableness.” Moore v. Reynolds , 153 F.3d 1086, 1096 (10th Cir. 1998). To show prejudice, a petitioner must “demonstrate there is a reasonable probability that, but for counsel’ s errors, the outcome of the proceedings would ha ve been different.” Id. The magistrate judge and subsequently th e district court concluded that Holt failed to show ineffective assistan ce of counsel because he co uld show neither deficient performance nor prejudice. Holt summarily argues that his written plea agreement did not comport with his understanding of what the agreement would be. But the magistrate6 judge compared Holt’s verbal plea and th e sentence imposed with the written plea agreement to ensure that they were consiste nt. The magistrate j udge found “no difference between what [Holt] ag reed to in open court and what is provided in th e plea agreement and . . . no difference between the sentencing ma de in open court and that set out in the Judgment.” (Report and Recommendation at 10.) Holt has made no showing that undermines that conclusion. Further, we agree with the magistrate that Holt’s argument that he was coerced into signing the plea agreement by his attorney ’s statement concerning an arrest warrant is without merit. “If [Holt’s] attorney told [him ] that a warrant would be issued for his arrest if he didn’t sign the plea agreement, that statement was more than likely true, and by making this statement, his attorney wa s not being objectively unreasonable.” (Id. at 11.) Finally, the magistrate judge relied on th e statements made by Holt during his plea colloquy. During his ex change with the cour t, Holt represented, [T]hat he understood his plea; that he understood that he had the right to plead not guilty; that he was giving up his right to ha ve a trial, to present a defense, to cross-examine witnesses; that no one wa s forcing him to change his plea; that no promises were made other than those on the record; that he discussed his plea with hi s attorney and was satisfi ed with his attorney’s advice; that there was nothing that would prevent him from understanding the contents of the plea; that he wa s aware of the penalties; and that he understood that if he was placed on probation and vi olated his probation, he could be placed in custody for the remaining period of time. (Id. at 8.) Further, Holt signed the followi ng affirmation in his plea agreement:7 I have read and I understa nd this agreement. . . . I have discussed the case and my constitutional rights with my lawyer. I understand that when I plead guilty I give up the following right s: my right to a trial by jury, my right to confront, cross-examine, and compel the attendance of witnesses, and my privilege against self-incrimi nation. I agree to enter my plea according to the terms and conditions set forth in this agreement. (Id. at 9.) The magistrate concluded that the statements made by Holt during his plea colloquy combined with the affirmation in his plea agre ement show that he understood his plea agreement and that his counsel’s performance did not fall below an objective standard of reasonableness. We agree with that conclusion. Numerous courts have denied relief under § 2254 and § 2255 to petitioners alleging that their guilty pleas were the product of ineffective assistance when their pl ea colloquies demonstrated otherwise. E.g. , Hammons v. Paskiewicz , 368 F. App’x 904, 907 (10th Cir. 2010) (unpublis hed); United States v. Padilla-Rodriguez , 335 F. App’x 724, 727–28 (10t h Cir. 2009) (unpublished), cert. denied , 130 S. Ct. 300 (2009); Un ited States v. Aparicio , 214 F. App’x 866, 868 (10th Cir. 2007) (unpublished). In fact, in Fields v. Gibson , we emphasized the importance of plea colloquies: “This colloquy between a judge and a defendant before accepting a guilty plea is not pro forma and without legal significance. Rather, it is an important safeguard that protects defendants from incomp etent counsel or misunderstandings.” 277 F.3d 1203, 1214 (10th Cir. 2 002). We fail to see how the delay between the time that Holt’s counsel signed the plea agreement and the time that he signed the plea agreement undermines the statements made by Holt in his plea colloquy. So, after carefully8 reviewing Holt’s filing in this Court, the di strict court’s dispositi on, and the record on appeal, we conclude that reasonable jurists w ould not debate the district court’s dismissal of Holt’s petition on this ground. C. Next, Holt argues that he was denied the ri ght to confront Detective Eric Meek at his probation revocation hearing. Holt’s complaint centers around a contradiction in a statement read at that hearing from a documen t prepared by Meek a nd a statement in the criminal complaint also prep ared by Meek. Holt states th at the probation officer who testified at the probation revocation hearin g made the following statement: “Detective Meek . . . witnessed Jimmy Ho lt hand suspect Sandra Miller a ten (10) piece of crack cocaine, Ms. Miller in return hands Jimmy Holt a ten.” (Id. at 12.) But Holt points out that in the criminal complain t, Meek stated that “he witnessed Jimmy Holt place his hand in the suspect’s and walk off. Ms. Miller th e suspect then hands him two twenty dollar crack rocks, he in return hands Ms. Miller two twenty do llar bill[s].” (Id. ) A probationer faced with the revocation of probation is entitled “to cross-examine adverse witnesses, unless the h earing body specifically finds good cause for not allowing confrontation.” Black v. Romano , 471 U.S. 606, 612 (1985 ). But a Confrontation Clause error can be harmless. In determin ing whether a Confrontation Clause error is harmless in the context of a trial, we have looked at several factors: (1) the importance of the witness’s te stimony in the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradic ting the testimony of the witness on9 material points; (4) the extent of th e actual cross-examin ation; and (5) the overall strength of the [prosecution’s] case. United States v. Burke , 571 F.3d 1048, 1057–58 (1 0th Cir. 2009), cert. denied , 130 S. Ct. 565 (2009). In this case, because Detective Meek did not testify at the re vocation hearing, Holt could not cross-examine him. But the magist rate judge and the district court concluded that the alleged contradiction in Meek’s statem ents was irrelevant to the district court’s finding that Holt committed a t echnical violation of probation. We agree and find that any error that occurred because of Holt’s inability to cross- examine Meek was harmless. Here, the court revoked Holt’s probation be cause he associated with a felon on probation, Sandra Miller. At his revocatio n hearing, Holt admitte d knowing Miller. Holt proffered a letter to the court in which hi s friend asked Miller, “W hy didn’t you tell him you were on probation?” (R eport and Recommendation at 13 .) Then, Miller responded, “I don’t tell anybody I’m on probation.” (Id. ) Finally, the court reviewed a police report documenting Holt’s interaction w ith Miller. That shows that Holt violated probation by associating with Miller. Any inconsistency in Meek’s statements concerning the amount of crack cocaine exchanged between Holt and Miller does not relate to the association that led to the revocation of Holt’s parole. So again we conclude that reasonable jurists would not debate the district court’s di smissal of Holt’s petition on this ground.10 D. Next, Holt asserts that the district judge illegally interj ected himself into the plea bargain discussions by insisting that Holt beco me part of the STEPS program in violation of New Mexico Rule of Criminal Procedure 5-304 1 and the Fourteenth Amendment. 2 The magistrate judge and distri ct court concluded that this claim predominantly alleges violations of state law, and that this cannot be a proper ba sis for federal habeas relief. That is undoubtedly correct. See Estelle v. McGuire , 502 U.S. 62, 67–68 (1991) (“[F]ederal habeas corpus relief does not lie fo r errors of state law.”). While Holt cites

1 Rule 5-304 reads in pe rtinent part as follows: The attorney for the state and the attorney for the defendant or the defendant when acting pro se may e ngage in discussions with a view toward reaching an agreem ent that, upon th e entering of a plea of guilty, no contest or guilty but mentally ill to a charged offense or to a lesser or related offense, the attorney for the state will move for dismissal of other charges, or will recommend or not op pose the imposition of a particular sentence, or will do both. The court shall not participate in any such discussions. N.M. R. Crim. P. 5-304(A)(1).

2 Holt argued below that the judge’s actions also violated Federal Rule of Criminal Procedure 11, but he failed to pe rsist in that argument before this Court. Therefore, we need not consider it. See Phillips v. James , 422 F.3d 1075, 1080 (10th Cir. 2005) (recognizing that we lack jurisdiction to consider issues not raised in the parties’ briefs). But even if we did, we agree with the magistrate and district court that Rule 11 does not govern state courts. See Miles v. Dorsey , 61 F.3d 1459, 1467 (10th Cir. 1995) (explaining that Rule 11 does not apply in st ate courts). Therefore, it cannot be a basis on which to challenge a plea in a stat e court criminal proceeding. See Estelle v. McGuire , 502 U.S. 62, 67–68 (1991) (“[F]ederal habeas corpus relief does not lie for errors of state law.”).11 the Fourteenth Amendment, he does not ex plain how the judge’s alleged interference violates the Fourteenth Amendment. Inst ead, Holt relies on Rule 5-304’s prohibition of court participation in plea negotiations. And th at, as explained, does not give rise to federal habeas relief. So once again we conc lude that reasonable jurists would not debate the district court’s dismissal of Holt’s petition on this ground.
E. Finally, Holt argues that the time limits set forth in New Mexico Rule of Criminal Procedure 5-805, which governs probation revoc ation hearings, were not met, which in turn violated not only Rule 5-805 but also the due pr ocess clause of the Fourteenth Amendment. 3 The magistrate judge and the district court again conclude d that this claim predominantly alleges violations of state law, and this cannot be a proper basis for federal habeas relief. Again, that is correct. See Estelle , 502 U.S. at 67–68 (“[F]ederal habeas corpus relief does not lie for errors of state law.”). Holt summarily asserts that the due process clause was violated but relies only on th e time limits set forth in Rule 5-805. So, similar to the previous claims, we conclude that reasonable jurists would not debate the district court’s dismissal of Holt’s petition on this ground. III. CONCLUSION

3 Holt also argued below that this violat ed the due process clause of the Sixth Amendment, but he failed to persist in that argument before this Court. So, as we discussed regarding Holt’s claim that the state court judge’s ac tions violated Rule 11, we need not consider this argument. See Phillips , 422 F.3d at 1080 (recogn izing that we lack jurisdiction to consider issues not raised in the parties’ briefs).12 Because Holt has failed to demonstrate th at reasonable jurist s would debate the district court’s dismissal of his petition, he has not made a substa ntial showing of the denial of a constitutional right. Accordin gly, we DENY Holt’s a pplication for a COA and DISMISS this appeal.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge