* This order and judgment is not binding precedent, e xcept under the

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

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

### MAY 15 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

MICHAEL BANKERT,

Petitioner-Appellant,

v. JOHN SHANKS, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. No. 97-2170 (D.C. No. CIV-95-864-SC) (D. N.M.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 We granted a certificate of probable cause in this case on February 13,

1998. -2- Plaintiff appeals from the district court’s dismiss al of his petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. 1 Petitioner was convicted in New Mexico state court of felony murder, traffic king by possession with intent to distribute cocaine on an accomplice theory, and conspiracy to traffic by possession with intent to distribute cocaine. The district court adopted the magistrate judge’s findings and recommendation and denied the petition. We review the district court’s denial of petitioner ’s habeas petition de novo,

see Sinclair v. Henman , 986 F.2d 407, 408 (10th Cir. 1993), and we affirm

. On appeal, petitioner raises seven issues: (1) the re was insufficient evidence of constructive possession of cocaine to s upport petitioner’s conviction of trafficking by possession with intent to distrib ute; (2) the jury instructions violated petitioner’s due process rights because th ey unconstitutionally relieved the prosecution of its burden of proving petitioner ’s possession of the cocaine; (3) he was denied effective assistance of trial cou nsel; (4) he was denied effective assistance of appellate counsel; (5) there was insu fficient evidence that the underlying felony was committed under inherently dangerous circumstances; (6) petitioner’s due process rights were violated b y prosecutorial misconduct; and (7) the erroneous second degree murder instruct ion was inherently confusing-3-

for the jury. The facts of this case are set forth in the New Mexico Supreme Court opinion affirming petitioner’s conviction, see State v. Bankert , 875 P.2d 370 (N.M. 1994), and we will not repeat them here. Petitioner maintains that the state presented insuf ficient evidence of constructive possession of the cocaine to support h is conviction for trafficking with intent to distribute cocaine on an accomplice theory. Because his conviction was as an accomplice, petitioner acknowledges that the state’s burden was to prove that he intended the crime be committed, the crime was committed, and petitioner helped, encouraged or caused its commiss ion. To that end, the state was obligated to show that petitioner’s accomplice, Kathy Christison, constructively possessed the cocaine. Contrary to respondents’ assertion, we review the sufficiency of the evidence, a mixed que stion of law and fact, de novo.
See Case v. Mondragon , 887 F.2d 1388, 1392, 1393 (10th Cir. 1989). Petitioner does not challenge the New Mexico Suprem e Court’s or the magistrate judge’s statement of the evidence on thi s point, but he does argue that the stated evidence is insufficient to supportthe jury’s finding of possession. We disagree. New Mexico law states that “[a]n accu sed has constructive possession of narcotics found in the physical posse ssion of his agent or any other person when the defendant has the immediate right t o exercise dominion and control over the narcotics.” State v. Bauske , 525 P.2d 411, 413 (N.M. Ct. App.-4-

1974). The evidence shows that Ms. Christison paidfor the cocaine, and, not only did she have the immediate right to exercise c ontrol over the amount of cocaine that was given her, she did exercise contro l to the extent she weighed it and demanded that it be supplemented. As it hap pened, she and petitioner chose to dispute the amount instead of accepting th e lesser amount and, in the course of demanding the full negotiated amount of c ocaine, petitioner killed Robert Martin. There was sufficient evidence to support the jury’s finding regarding possession. Petitioner also argues that there was insufficient evidence from which the jury could have found he committed the underlying d rug felony under inherently dangerous circumstances. Again, we disagree. The evidence shows that, part way into the drug deal, the participants traveled to a different location to complete the transaction. Before entering the second location, but after it was apparent there was a dispute as to the amount of cocaine, petition er armed himself with a gun he had hidden in the vehicle in which he was traveling . Later, during the dispute over the amount of cocaine, the victim threw the mo ney Ms. Christison had tendered for the drugs onto the table and asked if she wanted it back, petitioner held the gun to the victim’s neck insisting that th ey wanted the full amount of cocaine, and then petitioner shot him. That petiti oner chose to arm himself going into the further drug negotiations and that he heldthe gun to the victim’s head in-5-

his attempt to get the full amount of cocaine is su fficient evidence to support the jury’s finding that he committed the crime of traff icking with intent to distribute under inherently dangerous circumstances. Next, petitioner takes issue with two jury instruct ions. First, he argues that his due process rights were violated because jury i nstruction number 10 relieved the state of its burden of proving the element of p ossession. The portion of the instruction that petitioner disputes states: “Two or more people can have possession of a substance at the same time.” R. Vo l. III at 134. We fail to see how so instructing the jury relieved the state’s bu rden of proving possession by petitioner’s accomplice. It merely clarified for t he jury that, if it determined that someone else had possession of the cocaine, that di d not preclude a finding that Ms. Christison simultaneously had possession. The instruction did not, as petitioner argues, permit the jury to assume that Ms. Christison possessed the cocaine, despite having physically returned it to t he seller. The instruction is consistent with New Mexico law, pursuant to which M s. Christison could be found to have possessed the cocaine even when she n o longer had physical possession of the drugs, because she had paid for them and had the immediate right to exercise control. See Bauske , 525 P.2d at 413. Petitioner has failed to demonstrate that this jury instruction so infected his trial as to render it-6-

fundamentally unfair in violation of petitioner’s due process rights. See Maes v. Thomas , 46 F.3d 979, 984 (10th Cir. 1995). Petitioner also argues that the second degree murde r instruction erroneously included provocation language that was inherently c onfusing to the jury. Petitioner did not object to the instruction at tri al. We agree with the magistrate judge and the New Mexico Supreme Court that giving the instruction, regardless of whether it was correct under New Mexico law, was not fundamental error. The jury was given a “step-down” instruction that i t should only consider the second degree murder instruction if it found petiti oner not guilty of felony murder. See R. Vol. III at 142-43. The jury did find petition er guilty of felony murder, and, therefore, the second degree murder in struction did not enter into the jury deliberations. See United States v. Coleman , 7 F.3d 1500, 1506 (10th Cir. 1993) (stating that the court can assume the jury followed the law). Petitioner maintains that his Sixth Amendment rightto effective assistance of counsel was violated and that he was entitled to an evidentiary hearing on the matter. To prevail on an ineffective assistance of counsel claim, petitioner must show both that counsel’s performance fell below an objective standard of reasonableness and that counsel’s deficient perform ance prejudiced petitioner’s defense, that is, that there is a reasonable probab ility that, absent counsel’s errors, the outcome of the proceeding would have been different. See Strickland v.-7-

Washington , 466 U.S. 668, 687-88, 694 (1984). Mainly, petiti oner claims that his trial counsel was ineffective for choosing not to p resent any defense witnesses. The record shows that this was a tactical strategy that is “virtually unchallengeable.” Id. at 690. In addition, petitioner does not show that, had his counsel presented defense evidence, there is a reas onable probability that the outcome would have been different. Petitioner has shown neither deficient performance by counsel nor prejudice to his defense

. Petitioner also alleges ineffective assistance of c ounsel regarding three specific trial occurrences. He complains that coun sel did not raise a properly worded objection to jury instruction number 10, that counsel raised no objection to the second degree murder jury instruction, and that counsel pursued an improper line of questioning regarding Chester Smith, a convicted drug dealer who was also involved in the circumstances surround ing the murder. Petitioner has shown no prejudice resulting from these allegederrors by counsel. Petitioner also claims ineffective assistance of ap pellate counsel. He alleges that his appellate counsel neglected to raise a number of meritorious issues, only specifically citing ineffective assist ance of trial counsel and prosecutorial misconduct. Petitioner has shown nei ther deficient performance nor prejudice regarding the unnamed issues. We hav e held herein that petitioner’s ineffective assistance of trial counsel and prosecutorial misconduct issues are-8-

meritless, and, therefore, appellate counsel was no t deficient for declining to include them. See United States v. Cook , 45 F.3d 388, 392-93 (10th Cir. 1995). Finally, petitioner points to several instances of prosecutorial misconduct. He complains that the prosecutor, in entering into immunity agreements with two of the witnesses, somehow implicitly required the w itnesses to give perjured testimony; that the prosecutor improperly linked pe titioner with Chester Smith; and that the prosecution knowingly presented perjur ed testimony. Absent an allegation of deprivation of a more specific consti tutional right, prosecutorial misconduct does not warrant habeas relief “unless the conduct complained of made petitioner’s trial so fundamentally unfair as to deny him due process.” Mahorney v. Wallman , 917 F.2d 469, 472 (10th Cir. 1990) (quotation omi tted). Petitioner’s claims do not meet this high burden. The immunity agreement of which petitioner complains provides immunity in exc hange for truthful testimony. Petitioner has pointed to no evidence, but only mak es a bald assertion, of any agreement to provide perjured testimony. Whether o r not the witnesses actually testified truthfully is a credibility matter within the province of the jury. In addition, petitioner was already linked to Chest er Smith because Mr. Smith was involved in the circumstances of the murder. A s the magistrate judge found, the prosecution had the burden to establish a drug transaction, and evidence of Chester Smith’s known drug dealings was relevant to his role in the transaction.-9-

Finally, petitioner does not support his conclusoryallegation that the prosecution presented perjured testimony to represent the victi m as an innocent bystander with any citation to the record. Even if petitioner’s a llegation of perjured testimony were true, petitioner’s own representation of the e vidence shows that the jury could not have reasonably believed any such perjure d testimony. None of petitioner’s claims establish the fundamental unfai rness of his trial. We AFFIRM the denial of the petition for habeas rel ief. We grant respondent’s motion to accept his answer brief as t imely filed.

Entered for the Court

James E. Barrett Senior Circuit Judge