This order and judgment is not binding precedent, except under the *

doctrines o f law of the c ase , res jud icata, and co llateral estop pel. The court

generally disfavors the citation of orders and judgments; nevertheless, an

orde r and judgmen t may be c ited under the terms an d co nditions of 1 0th Cir.

R. 36.3.

F I LED

United States Court of Appeals

Tenth Circuit

October 12, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT O F APPEALS

TEN TH C I RC U I T

TY RONE SM ITH ,

Defendant-Appellant, No. 05-2027

v. (D. New M exico)

DONALD DORSEY, Warden,

Plaintiff-Appellee.

 (D .C . No. CIV -04-261-M C A/LFG )

ORDER AND JUDGM E NT

*

Before HENRY , SEYM OU R , and T YM KOVIC H, Circuit Judg es.

Tyrone Smith, a New M exico state prisoner s erving a life sentence

appeals the district court’s dismissal of his petition filed pursuant to 28

U.S.C. § 2254. M r. Smith wa s convic ted of first-degre e murde r, conspira cy,

and two counts of tampering with evidence. The district court adopted the

findings an d recommen dations of the mag istrate judge and den ied M r.
 We note that M r. Smith sought, and was granted, a COA on a Brady 1

c laim and seve ra l Confrontation Clau se c laims tha t he ha s chosen not to

raise before us.

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Smith’s habea s petition an d also den ied M r. Smith’s request fo r a

Certifica te of Appea lability (“COA”). A pan el of this court granted M r.

Smith request for a COA pursuant to 28 U.S.C. § 2253 on s everal

con tentions, including fou r ineff ective assistance c laims, two due p rocess

claims, a Confrontation Clause violation, and cumulative error. For 1

substantially the same reasons set forth by the magistrate judge, we deny

M r. Smith’s habeas petition.

I. BAC KG ROUND

A . Procedural posture

After a nine -day jury trial he ld in New M exico sta te court in

September 1995, the jury convicted Mr. Smith of first-degree murder of

Je rol Younge r, co nsp ira cy, an d two counts of tampe ring with evidenc e , in

viola tion of N.M . Sta t. Ann. § 30-2 -1 (A)(1) (1994), id. § 30-28-2(B)(1)

(1 979), id. § 30-22-5 (1963). The sta te tria l co urt senten c ed M r. Smith to

life plus twelve years. The New M exico Supreme Court rejected his direct

appeal; the state district court denied Mr. Smith’s postconviction petition

for habeas corpus, and the New M exico Supreme Court and the United States

Supr eme Court denied his petition for a writ of certiorari. M r. Smith has
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exh austed each of his claims before the state cou rts.

B. Statem en t of Fa cts

The New M exico Supreme Court provided the following factual

background when it rejected the direct appeals of Mr. Smith and his codefendant M r. Brown:

On Septemb e r 14, 1992, the body of Je rol Younge r, an Air

Forc e se rge ant sta tioned a t Kirtland Air Forc e ba se , wa s found in

an irrigation ditch in south Albuquerque. He ha d been strangled

and be a ten to de a th. Younge r a llegedly wa s a drug de a ler in

Albuquerque up until the time of his death.

Denise Spike s and Frank Luc e ro we re the tw o ma in

pros ecution witnesses. The stories they told provided the theory of

the State's case. Spikes testified as follows. She and Younger had

been married at one time and had a son togeth er. Spikes testified

that Younger disliked the intimate relationship that had developed

between Spikes and Defendan t Smith. Accord ing to Sp ikes,

De f endant Smith and Spike s d e c ided to r e so lv e the re lationsh ip

with Younger by going to talk to him. Spikes called Younger from

a p ay phone in A lbuquerque and ask ed him to come and get he r.

The two drove to Luc e ro’s h o u s e , a sma ll, fre e -standing room in

Albuquerque's So u th Valley, where Def endan ts and Luce ro w ere

waiting. When Spikes knocked on the door, Younger was grab bed

and taken into the h ous e, and Spikes remained outside. She

testified she heard Younger s cream and she ran to a nearby pay

phon e . De f endant Smith, howeve r, came to ge t he r, ap pa rently

before she was able to phone for help. When she arrived back at

Lucero's house, Younger was gone, as was his car. Defendant

Smith went into the house for a few minutes, came out, and he and

Spikes went to h is mother’s home. Several weeks later, Spikes

a sk ed De f endant Smith if he had killed Younge r a n d h e d e n ied it.

Lucero, who was in the room at the time of the killing,

testified as follows. He sa id that he was at his girlfriend 's hou se

when De f endant Smith c ame to the door and sa id tha t he ne eded to

go to Luc e ro's house be c ause som eone was going to pick up a

television. Luc e ro testified tha t h e g o t into a Blaz e r be longing to

Def en dan t Smith’s mother, in wh ich Sp ikes an d Def en dan ts were
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seated. They drove to Lucero's hous e and entered. Lucero testified

th a t Defendan t Smith an d Spikes left, and Defendan t Smith

re turned a lone with a television , w hich he plac ed in the c lose t.

Lucero stated that he heard a car drive up, and heard two voices; he

re cogniz ed one a s the voic e of S pike s, and the othe r a s ma le . Th e

man entered, and Defendant Smith told the man that the television

was in the clos et. When he went to the clos et, Defendants attacked

the man with hamme rs. Luc e ro testified tha t Spike s wa s wa lking in

at the time, bu t that the d oor mu st h a v e clos ed on her. Luce ro

testified tha t De f endant Brown re triev ed a gun from a bag and he ld

it on the man whil e D e f endant Smith tied him. De f endant Smith

then told Lucero to put on gloves, take the man's car keys, an d g et

rid of the c a r. Luc e ro did so. Afte rwards, Def endant Smith found

Lucero and brought him back to his house. The man was still on the

floor at Lucero’s home. The three men loaded the body into a truck

and dumped his body in a ditch.

Following the murde r, Lucero bec ame very anxious around

p o li ce off i c e rs. A c c o rd in g to Luc e r o ’s c o u sin , D enis e

Purce ll-Abeyta, an d her roommate, Matilda G onza les, Luce ro

admitted to killing Younger becaus e he ow ed Younger money for

drugs. Shortly after this, police attempted to search Lucero's home,

but it had been burned down. In the remains of the h ouse, howev er,

the police found a hammer head and handle, plastic bags, duct tape,

and cords sim ila r to those used to tie up Younge r. Around the tim e

of the search , b o th Lucero and Defendant Smith left the state and

traveled to San Diego to visit Spikes.

In San Diego, Lu cero stayed with his aunt, Linda Satomba.

When police located Satomba, she initially den ied k nowing his

whe re abouts. La ter, tho ugh, she told police Luc e ro had r e lated to

her a story similar to his trial testimony. Accord ing to Satomba,

Lucero never admitted to killing Younger. Satomba testified at

trial regarding Lu ce ro's statements. Her testimony was admitted

under the prior consistent statement rule.

Lucero was given transactional immunity and Spik es was

given use immunity to testify at trial. Defendants were convicted

of first deg ree deliberate intent murder, con spiracy to commit first

deg ree murde r, an d two co unts of ev iden ce tamp e ring. They were

sentenced to life imprisonment plus twelve years.

New M e x ico v . Brown, 969 P.2d 313, 317-18 (19 98).
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II. DISC USSIO N

This court granted Mr. Smith a COA on eight issues: Issues (1)

through (4) inv olve ineffe ctive a ssistan ce of counsel fo r counsel’s fa ilure

(1) to move to exc lude M r. Luc e ro’s te stimony be c ause his immunity

agreement was impermissibly coercive; (2) to request a limiting instruction

rega rding M r. Luc e ro’s p rior consisten t sta tements to M s. Sa tomba ; (3) to

present evidence that wou ld have shown that M s. Spikes’ motive to lie arose

befo re she made ce rtain prior consistent statements to M s. Jimenes and M s.

O’Grady; and (4) to object under NM RA 11-403 to testimony concerning

M s. Spikes’ prior inconsisten t statemen ts. The remaining co ntentions are

(5) M r. Lucero’s immun ity agreement violated M r. Smith’s due process

rights becaus e it was impermissibly coercive; (6) New M exico’s theory of

admissibility regarding M s. Satomba’s out of co urt statemen ts violated M r.

Smith’s d ue proc e ss rights; (7) M r. Smith’s Confrontation Clau se rights

were violated via stipulation regarding the testimony of Karen Thomas; and

(8 ) cumula tive e rror v iola ted M r. Smith’s right to due pro c e ss. 

To succeed on his § 2254 petition, M r. Smith must establish that the

New M exico Supreme Court’s decision:

(1) resulted in a decisio n that 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) re su lted in a de c ision tha t wa s b a sed on an unre a so nable

determination of the facts in light of the evidence presented in the
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State court proceeding.

28 U.S.C. § 2254(d). “[A] de termina tion of a f a c tua l issu e made by a State

court sha ll be pre sumed to be corr e c t.” Id. § 2254(e )(1); Smith v. M ullin,

379 F.3d 919, 924-25 (10th Cir. 2004). We review the district court’s legal

analysis of the state court decision de novo.

The magistrate judge considered and rejected each of these claims on

the merits. We have considered the magistrate judge’s thorough and lengthy

findings, the district court’s order, the briefs, and the entire record on

appe a l. For su bstantially the same re a so ns a rticu lated by the magistra te

judge in its well-reasoned findings and recommended disposition, we deny

M r. Smith’s petition for hab eas corpus.

First, the magistrate judge correctly determined that none of issues (1)

through (4) me t Strickland v. Washington’s deficient performance or

prejud ice pron gs. 466 U.S. 668, 688 (19 84). The New M ex ico d istrict court

determined that M r. Lucero’s testimony was not inherently unreliable and

that his credibility was properly left to the jury. It found there was no

reasonable probability that a motion to exclude the testimony would have

been successful. We agree with the magistrate judge that this was not an

unre a sonable applic a tion of f ede ra l law .

Second, as to the limiting instruction, the N ew M ex ico d istrict court

determined such an instruction “would have had little value and would not
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have changed the outcome of the c a se .” Aplt’s App. vol. V, a t 1192. We

agree that neither prong of Strickland has been met and this was not an

unre a sonable applic a tion of c le a rly e stablished f ede ra l law .

Third, as to M s. Spike s’ motive to lie, the sta te court de termined tha t 

“[r]easonably competent attorneys would have concluded that there was

greater potential for damage in presenting this evidence than in using

existing evidence to establish when Ms. Spikes’ motive to lie aros e.” Id. at

1196-97. The magistra te judge de termined tha t the de c ision to c a ll a

witne ss is a trial ta c tic, and agre ed tha t Ms. Jimene s and M r. Tolbe rt would

have made statements that were prejudicial to the defense. We agre e with

the magistrate jud ge’s conclusion s.

Fourth, as to failure to object under NM RA 11-403,the New M exico

state court found this decision to be a tactical one, and concluded that “a

re a so nably compe ten t attorney would have de c ided not to objec t unde r Rule

403 to testimony of Spikes’ prior inconsistent statements since such

objections would have been overruled” and there is no evidence “that such

an objec tion would have a ff e c ted the outcome of the trial.” Aplt’s App. vol.

V, a t 1198. The magistrate judge stated there was “nothing unreasonable”

about the state habeas proceeding’s outcome and that “[t]he testimony was

of more than marginal relevance.” Id. vol. III, at 80 5 (Mag istrate Judge’s

Findings and Recommended Disposition). “[This] court cannot s ay that
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exclusion of this testimony would have made a difference in the outcome of

the trial. . . .” Id. at 806. We agree that the New M exico court’s ruling was

not an unre a sonable applic a tion of f ede ra l law .

Fifth, as to the coe rc ive na ture of M r. Luc e ro’s immunity agre ement,

which included several paragraphs prepared by the government as to what

his te stimony would be , all pa rties agre e tha t this pa rticu lar agre ement is

quite unusual. M r. Lucero promised to testify truthfully, and the New

M ex ico Supreme Court determined that the agreemen t did not coe rce M r.

Lucero into doing otherwise.

The magistrate judge found that there was “nothing on the record that

would tend to show Lucero was coerced into testifying as he did.” Id. at

799. Although both M r. Smith’s counse l an d the a ttorney for the State

found the agreement to be “unusual,” this acknowledgment “does not

establish that the agreement was coercive.” Id . We agree with the

magistrate judge that the New M exico Supreme Court’s decision was not an

unre a so nable applica tion of f ede ra l law nor wa s it ba sed on an unre a so nable

determination of the facts in light of the evidence presented.

Sixth, as to whe the r the admission of the prior consisten t sta tements

from M s. Satomba su pporting M r. Luce ro’s v ersion of even ts violated M r.

Smith’s due process rights, the New M exico Supreme Court held the

evidence was improperly admitted as substantive evidence, but any error
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was harmless becaus e the statements could come in as rehabilitative

evidence. The magistrate judge determined that “[t]here was sufficient

legal basis for the [state] supreme court to rule that the testimony was

proper as rehabilitation evidence, after Lucero’s credibility was attacked on

cross-examination.” Id. at 827. M oreover, “[a]lthough the evidence was

admitted at trial as non-hearsay under Rule 801, the pros ecution did not

unduly emphasize Satomba’s testimony in closing argumen t. . . . The Court

cannot say that the State argued to the jury that Satomba’s testimony

constituted substantive evidence of Smith’s guilt.” Id . We agree with the

magistrate judge’s conclusion that the state supreme court’s reasoning was

not an unreasonable application of federal law, nor did it render the trial

fundamenta lly unf a ir. 

Seven th, M r. Smith’s Confrontation Clause argument fails because

M s. Thomas was a defen se witness, who wou ld not be subject to crossex amination by M r. Smith. We agree with the N ew M ex ico Supreme Court’s

conc lusion tha t Mr. Smith

cann ot expect that [he] wou ld be able to present Th omas’

testimony in the form of a stipulation without the State bringing

out in the stipulation how [he] would expect Thomas to testify

on cross-examination. We agree with the State’s contention that

Defendant[] accepted paragraphs nine and ten of the stipulation

in order to gain the first eight paragraphs of the stipulation.

969 P.2d at 323.
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Eighth and fina lly, having found no e rror in any of those rulings, we

must conclud e tha t there was n o cumulative e rror.

III. CON CLU SIO N

Accordingly, we AFFIRM the district court’s denial of Mr. Smith’s § 

2254 petition for habeas corpus.

Enter ed for the Court,

Robert H. Hen ry

Circuit Judge