* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is therefore ordered sub mitted without oral argument. 

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

### DEC 9 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DENNIS N. CARABAJAL, Petitioner - Appellant,

v. TIM LEMASTER, Warden, Penitentiary of New Mexico, Defendant - Appellee. No. 02-2115 D.C. No. CIV-00-207 BB/WWD (D. New Mexico)

ORDER AND JUDGMENT *

Before KELLY , McKAY , and MURPHY , Circuit Judges. **
Petitioner-Appellant Dennis Carabajal, an inmate ap pearing through counsel, seeks a certificate of appealability (“COA”) allowing him to appeal the district court's order denying relief on his petiti on for a writ of habeas corpus.
See 28 U.S.C. § 2254. Because Mr. Carabajal has faile d to make “a substantial- 2 -

showing of the denial of a constitutional right” as required by 28 U.S.C. § 2253(c)(2), we deny his request and dismiss the app eal. Mr. Carabajal pled guilty in New Mexico state courtto second degree murder, armed robbery with old age enhancement and tampering with evidence. He was sentenced to prison for a total of 58 years, of which eight were conditionally suspended pending completion of five years supervised probation. Mr. Carabajal did not file a direct appeal. His mo tion for reconsideration of the sentence was denied, and his state habeas petition was denied after an evidentiary hearing. Mr. Carabajal then filed a petition for a writ of h abeas corpus in federal district court. The federal habeas petition, subst antially mirroring the state habeas petition, alleged ineffective assistance of counsel due to his attorney’s failure to: (1) peremptorily challenge the state ju dge; (2) conduct an adequate investigation; (3) proceed with a change of venue m otion; (4) properly advise him regarding the plea agreement and failure to move to withdraw the plea; and (5) adequately represent his interests at sentencing an d at the hearing to reconsider the sentence. The magistrate judge considered all grounds for the ineffective assistance claim and recommended that the district court deny Mr. Carabajal’s petition. After consideration of Mr. Carabajal’s o bjections, the district court adopted the magistrate judge’s proposed findings an d recommended disposition,- 3 -

denied Mr. Carabajal’s petition on the merits and d eclined to grant him a COA. Mr. Carabajal reasserts the same claims before this court in seeking a COA. For this court to grant a COA , Mr. Carabajal must make “a substantial showing of the denial of a constitutional right.” 2 8 U.S.C. § 2253(c)(2). Where, as here, the district court has rejected the habeas petitioner’s constitutional claims on the merits, the petitioner must demonstrate that“reasonable jurists would find the district court’s assessment of the constitution al claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Because the claims bef ore the district court were presented to the New Mexico state court on habeas review and were denied on the merits, the district court could not properly grant the writ unless it found that the state court adjudication r esulted in a decision that “was contrary to, or involved an unreasonable applicatio n of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor , 529 U.S. 362, 412-13 (2000). It is against these standards that the district court’s d enial of the COA and the petition must be assessed. A guilty plea may be challenged and rendered involu ntary by a showing of constitutionally ineffective assistance of counsel. Romero v. Tansy , 46 F.3d 1024, 1033 (10th Cir. 1995). To prevail on an inef fective assistance claim, the petitioner must show both that counsel’s performanc e fell below an objective- 4 -

standard of reasonableness and that petitioner was prejudiced thereby. Strickland v. Washington , 466 U.S. 668, 687-88 (1984). A showing of unreas onable performance requires the petitioner to overcome the strong presumption that counsel's conduct was within the wide range of reas onable professional assistance. Id. at 689. If petitioner pled guilty, a showing of p rejudice requires petitioner to show “that there is a reasonable prob ability that, but for counsel's errors, he would not have pled guilty and would hav e insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 59 (1985). In this case, regarding counsel’s failure to peremp torily challenge the state judge, we conclude as did the magistrate judge and the district court that, even assuming this claim is properly before us and assum ing that counsel’s performance was unreasonable, Mr. Carabajal has fai led to make the required showing of prejudice. See Strickland , 466 U.S. at 694 (“The defendantmust show that there is a reasonable probability that, b ut for counsel's unprofessional errors, the result of the proceeding would have bee n different.” (emphasis added)). Although in New Mexico the “right to disq ualify the presiding judge is based upon an assumed prejudice or bias on his part ,” State ex rel. Weltmer v. Taylor , 79 P.2d 937, 939 (N.M. 1938), such “assumed preju dice” giving rise to the right to disqualify does not satisfy the petiti oner’s Stricklandburden to adduce some evidence to show a reasonable probability thatthe result of the proceeding- 5 -

would have been different had his counsel moved to challenge Judge Brown under N.M. Stat. Ann. § 38-3-9 (2002). Mr. Carabajal’s m ere speculative belief that a different judge mighthave ruled more favorably, with nothing more, does not satisfy the required showing. After carefully reviewing the record and the conclu sions drawn by the magistrate judge and the district court, we similar ly conclude that Mr. Carabajal has failed to show prejudice on the failure to inve stigate claim. To prevent the distorting effects of hindsight, we evaluate counse l’s conduct from counsel’s perspective at the time, in light of then-existing facts and circumstances. Strickland , 466 U.S. at 689. Having done so, we are not conv inced that Mr. Carabajal’s counsel, had he investigated precisely as Mr. Carabajal now asserts he should have, would have uncovered anything to lead him to alter his recommendations regarding the plea such that Mr. Carabajal would not have pled guilty. See Hill , 474 U.S. at 59. Given the State’s very strong ca se, including Mr. Carabajal’s confession and key witness testimony, I ROA Doc. 24 at 8-9, and given his counsel’s success at negotiating a favorable plea agreement that significantly limited his prison sentence exposure, id. , Mr. Carabajal has not shown a reasonable probability that he would have i nsisted on going to trial had his counsel investigated differently. For similar reasons, we conclude that Mr. Carabajal has also not overcome the strong presumpt ion that his counsel's conduct- 6 -

was reasonable in light of all the existing facts a nd circumstances. On the issue of counsel’s alleged failure to advise him regarding the plea and counsel’s alleged failure to withdraw the plea, we are persuaded by the reasoning of the magistrate judge and the district court that Mr. Carabajal has not shown prejudice. We note the considerable evidence supporting the conclusion that Mr. Carabajal was well-informed about the pleaand its consequences, including his own testimony at the change of plea h earing. We conclude that Mr. Carabajal has not met his burden with respect to th is claim to show the existence of a reasonable probability that, but for counsel's alleged errors, he would not have pled guilty and would have insisted on going t o trial. Finally, on the claim regarding counsel’s failure t o proceed with the change of venue motion, we conclude that Mr. Carabajal has failed to show either unreasonable performance or prejudice for substanti ally the same reasons as did the magistrate judge and the district court. Simil arly, for the claim concerning counsel’s failure to adequately represent his inter ests at sentencing and at the hearing to reconsider the sentence, we also agree w ith the reasoning of the magistrate judge and the district court that Mr. Ca rabajal has failed to demonstrate any prejudice. For each of these claim s, Mr. Carabajal ultimately failed to establish a reasonably probability that, but for the counsel’s alleged transgressions, he would not have pled guilty and w ould have insisted on going to- 7 -

trial. Because Mr. Carabajal has not established to this c ourt that reasonable jurists would find the district court’s assessment of his constitutional claims debatable or wrong, we conclude that none of Mr. Carabajal’s claims suffice to make a substantial showing of a denial of a constit utional right. We therefore DENY a COA and DISMISS the appeal.
Entered for the Court

Paul J. Kelly, Jr. Circuit Judge