* This Order is not binding precedent, except under the doctrines of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...)

FILED

United States Court of Appeals

Tenth Circuit

October 4, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSEPH TORRES,

Petitioner-Appellant,

v.

GEORGE TAPIA; GARY K. KING,

Attorney General of the State of New

Mexico,

Respondents-Appellees.

No. 09-2294

(D.C. No. 1:08-CV-01202-WJ-LAM)

(D.N.M.)

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
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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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
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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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
-4-

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
-5-

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
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

(continued...)

-6-

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
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.

-7-

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
-8-

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.
-9-

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
-10-

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
-11-

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,
-12-

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