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 state prisoner convicted of one count of 

cocaine trafficking, seeks a certificate of appealability (COA) so that he may challenge 

the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. 

Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), we conclude that Holt has 

failed to make a substantial showing of the denial of a constitutional 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 Court
2 

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 dismissed three other counts against him. On 

March 21, 2007, the state court sentenced Holt to a term of nine 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 identified by [his] Probation/Parole Officer as 

being detrimental to [his] Probation supervision, which may include persons having a 

criminal record, other probationers and parolees, 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 hearing 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, Sandra Miller. The court also reviewed a letter 

sent from one of Holt’s friends to Miller, in which the friend asked Miller, “Why didn’t 

you tell him you were on probation?” In that letter, Miller replied, “I don’t tell anybody 
3 

I’m on probation.” Finally, the court reviewed a police report concerning an exchange of 

crack cocaine between Holt and Miller, which led 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 petitions, which were both denied. Then, on 

August 28, 2009, proceeding pro se, Holt petitioned the federal district court for habeas 

relief. Holt raised four grounds for relief: (1) the ineffective assistance of counsel caused 

him to enter into an involuntary plea; (2) the state court denied him confrontation at the 

probation revocation hearing; (3) the judge illegally 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 district 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 petitioner’s constitutional claim on the merits, the 

petitioner “must demonstrate that reasonable jurists would find the district court’s 

assessment of the constitutional claims debatable 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 Death Penalty Act of 1996 (AEDPA), it is also governed by 

those provisions. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), modified on 

other grounds, McGregor v. Gibson, 248 F.3d 946 (10th Cir. 2001). “Under the AEDPA, 

the appropriate standard of review for a particular claim is dictated by the treatment of 

that claim by the state courts.” Hain v. Gibson, 287 F.3d 1224, 1229 (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 independent 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 relief only if he can 

establish that the state court decision ‘was contrary to, or involved an unreasonable 

application of, clearly established Federal law, 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 courts twice denied Holt’s state habeas 

petitions. One of those times, the court summarily disposed of Holt’s claim. But we 

cannot tell from the record before us whether the court also summarily disposed of his 

claims the second time or addressed the merits of Holt’s arguments. Therefore, we will 
5 

review the district court’s legal conclusions de novo and its factual findings for clear 

error without applying AEDPA deference. 

B. 

 Holt argues his counsel was ineffective for failing to obtain a plea agreement that 

reflected Holt’s understanding. Holt contends that his attorney used threats and 

intimidation to force him to sign that plea agreement. 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 there was a five-month delay between the time that 

his counsel signed the plea agreement and the time that he signed the plea agreement. 

Holt posits that this delay was part of a “preconceived” scheme. 

In order to establish ineffective assistance of counsel, a petitioner must show both 

deficient performance and prejudice. 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 standard 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 have been different.” Id.

 The magistrate judge and subsequently the district court concluded that Holt failed 

to show ineffective assistance of counsel because he could 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 magistrate 
6 

judge compared Holt’s verbal plea and the sentence imposed with the written plea 

agreement to ensure that they were consistent. The magistrate judge found “no difference 

between what [Holt] agreed to in open court and what is provided in the plea agreement 

and . . . no difference between the sentencing made 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 was not being objectively unreasonable.” (Id. at 

11.) 

Finally, the magistrate judge relied on the statements made by Holt during his plea 

colloquy. During his exchange with the court, 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 have a trial, to present a 

defense, to cross-examine witnesses; that no one was forcing him to change 

his plea; that no promises were made other than those on the record; that he 

discussed his plea with his attorney and was satisfied with his attorney’s 

advice; that there was nothing that would prevent him from understanding 

the contents of the plea; that he was aware of the penalties; and that he 

understood that if he was placed on probation and violated his probation, he 

could be placed in custody for the remaining period of time. 

(Id. at 8.) Further, Holt signed the following affirmation in his plea agreement: 
7 

I have read and I understand 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 rights: my right to a trial by jury, my 

right to confront, cross-examine, and compel the attendance of witnesses, 

and my privilege against self-incrimination. 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 agreement 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 plea colloquies demonstrated otherwise. E.g., Hammons v. 

Paskiewicz, 368 F. App’x 904, 907 (10th Cir. 2010) (unpublished); United States v. 

Padilla-Rodriguez, 335 F. App’x 724, 727–28 (10th Cir. 2009) (unpublished), cert. 

denied, 130 S. Ct. 300 (2009); United 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 incompetent counsel or misunderstandings.” 277 

F.3d 1203, 1214 (10th Cir. 2002). 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 carefully 
8 

reviewing Holt’s filing in this Court, the district court’s disposition, and the record on 

appeal, we conclude that reasonable jurists would not debate the district court’s dismissal 

of Holt’s petition on this ground. 

C. 

 Next, Holt argues that he was denied the right 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 document prepared by Meek and a statement in the 

criminal complaint also prepared by Meek. Holt states that the probation officer who 

testified at the probation revocation hearing made the following statement: “Detective 

Meek . . . witnessed Jimmy Holt 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 complaint, Meek stated that “he witnessed Jimmy Holt place his hand 

in the suspect’s and walk off. Ms. Miller the suspect then hands him two twenty dollar 

crack rocks, he in return hands Ms. Miller two twenty dollar bill[s].” (Id.) 

 A probationer faced with the revocation of probation is entitled “to cross-examine 

adverse witnesses, unless the hearing 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 determining 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 testimony in the prosecution’s case; (2) 

whether the testimony was cumulative; (3) the presence or absence of 

evidence corroborating or contradicting the testimony of the witness on 
9 

material points; (4) the extent of the actual cross-examination; and (5) the 

overall strength of the [prosecution’s] case. 

United States v. Burke, 571 F.3d 1048, 1057–58 (10th Cir. 2009), cert. denied, 130 S. Ct. 

565 (2009). 

In this case, because Detective Meek did not testify at the revocation hearing, Holt 

could not cross-examine him. But the magistrate judge and the district court concluded 

that the alleged contradiction in Meek’s statements was irrelevant to the district court’s 

finding that Holt committed a technical 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 because he associated with a felon on 

probation, Sandra Miller. At his revocation hearing, Holt admitted knowing Miller. Holt 

proffered a letter to the court in which his friend asked Miller, “Why didn’t you tell him 

you were on probation?” (Report 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 with 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 dismissal of Holt’s petition on this ground. 
10 

D. 

 Next, Holt asserts that the district judge illegally interjected himself into the plea 

bargain discussions by insisting that Holt become part of the STEPS program in violation 

of New Mexico Rule of Criminal Procedure 5-3041

 and the Fourteenth Amendment.2 

The magistrate judge and district court concluded that this claim predominantly alleges 

violations of state law, and that this cannot be a proper basis 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 for errors of state law.”). While Holt cites 

 

1

 Rule 5-304 reads in pertinent part as follows: 

The attorney for the state and the attorney for the defendant or the 

defendant when acting pro se may engage in discussions with a view 

toward reaching an agreement that, upon the 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 oppose 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 persist 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 state courts). Therefore, it cannot be a basis on 

which to challenge a plea in a state 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 explain how the judge’s alleged interference 

violates the Fourteenth Amendment. Instead, Holt relies on Rule 5-304’s prohibition of 

court participation in plea negotiations. And that, as explained, does not give rise to 

federal habeas relief. So once again we conclude 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 revocation hearings, were not met, which in 

turn violated not only Rule 5-805 but also the due process clause of the Fourteenth 

Amendment.3

 The magistrate judge and the district court again concluded 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 the 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 violated 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 actions violated Rule 11, we 

need not consider this argument. See Phillips, 422 F.3d at 1080 (recognizing that we lack 

jurisdiction to consider issues not raised in the parties’ briefs). 
12 

 Because Holt has failed to demonstrate that reasonable jurists would debate the 

district court’s dismissal of his petition, he has not made a substantial showing of the 

denial of a constitutional right. Accordingly, we DENY Holt’s application for a COA 

and DISMISS this appeal. 

ENTERED FOR THE COURT 

David M. Ebel 

Circuit Judge