This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations from the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 STATE OF NEW MEXICO , 2 Plaintiff-Appellee, 3

v. No. 35,654 4 CHRISTOPHER ZAMORA, 5 Defendant-Appellant. 6 APPEAL FROM THE DISTRICT COURT OF SANDOVAL COUNTY 7 Louis P. McDonald, District Judge 8 Hector H. Balderas, Attorney General 9 Santa Fe, NM 10 for Appellee 11 Patrick J. Martinez 12 Albuquerque, NM 13 for Appellant 14 MEMORANDUM OPINION 15 VIGIL, Chief Judge. 162 {1} Defendant appeals from the district c ourt’s judgment and sentence and order of 1 deferral and remand to the municipal court, entered following a benc h trial, convicting 2 him for driving under the influence of intoxicating liquor or drugs (first 3 offense), failure to maintaina traffic lane, and no driver’s license. This Court issued 4 a calendar notice proposing summary affirm ance. Defendant filed a memorandum in 5 opposition to this Court’s notice of propos ed disposition, which we have duly 6 considered. Unpersuaded, we affirm. 7 {2} Defendant raises a single issue on app eal: whether he received ineffective 8 assistance of counsel where his trial counsel failed to file a motion to suppress and did 9 not properly subpoena a defens e witness for trial. [CN 3] In our calendar notice, we 10 proposed to hold that the recordin this case is insufficient to establish whether defense 11 counsel’s actions were unreasonable or caused prejudice to Defendant. [CN 4] See 12 State v. Roybal , 2002-NMSC-027, ¶ 19, 132 N.M. 657, 54 P.3d 61 (“When an 13 ineffective assistance claim is first raisedon direct appeal, [the appellate courts] 14 evaluate the facts that are part of the record. If facts nece ssary to a full determination 15 are not part of the record, an ineffec tive assistance claim is more properly brought 16 through a habeas corpus petition, although anappellate court may remand a case for 17 an evidentiary hearing if the defendant makes a prima facie case of ineffective 18 assistance.” (citation omitted)); see also State v. Aker , 2005-NMCA-063, ¶ 34, 137 193 N.M. 561, 113 P.3d 384 (“To establish a prima facie case of ineffective assistance of 1 counsel, [a d]efendant must show that (1 ) counsel’s performance was deficient in that 2 it ‘fell below an objective standard of reas onableness’; and (2) that [the d]efendant 3 suffered prejudice in that there is ‘a reasonable probability that, but for counsel’s 4 unprofessional errors, the result of the pr oceeding would have been different.’ ” 5 (citation omitted)). 6 {3} Specifically, with respect to counsel’s failure to file a motion to suppress, we 7 noted in our calendar notice that there was nothing in the docketing statement to 8 indicate a basis for suppression of the breath alcohol results, and we also observed that 9 there did not appear to be anything in the record before this Court that would establish 10 a basis for suppression. [CN 3] Conse quently, we proposed to conclude that 11 Defendant had not demonstrated a prima faci e case of ineffective assistance of counsel 12 for the failure of his counsel to file a motion to suppress. See State v. Mosley , 2014- 13 NMCA-094, ¶ 20, 335 P.3d 244 (stating that wh en a defendant’s ineffective assistance 14 of counsel claim is based upon trial counsel’s failure to suppress evidence, he or she 15 “must establish that the facts support the motion to suppress and that a reasonably 16 competent attorney could not have deci ded that such a motion was unwarranted” 17 (internal quotation marks and citation omitted)). 184 {4} In his memorandum in opposition, aside fro m a mere recitation of facts already 1 provided to this Court [ seeMIO 2-3], Defendant has not provided us with a basis for 2 suppression. This Court will not attempt to divine Defendant’s argument in favor of 3 suppression where it has not even been asserted, let alone adequately developed. See 4 Corona v. Corona , 2014-NMCA-071, ¶ 28, 329 P.3d 701 (“This Court has no duty 5 to review an argument that is not adequately developed.”); Elane Photography, LLC 6 v. Willock , 2013-NMSC-040, ¶ 70, 309 P.3d 53 (“To rule on an inadequately briefed 7 issue, [the appellate court] would have to develop the arguments itself, effectively 8 performing the parties’ work for them.”). To the extent Defendant is arguing that his 9 counsel “had evidence in his possession th at would have properly challenged the 10 foundation for the admission of [Defendant’s ] breath results” [MIO 3], we note that 11 this non-descript evidence does not appear to be a matter of record in this case, and 12 we will not consider matters outside the record. See State v. Harrison , 2010-NMSC13 038, ¶ 10, 148 N.M. 500, 238 P.3d 869 (“Matters outside the record present no issue 14 for review.” (internal quotation marks and citation omitted)). Therefore, we are not 15 convinced that our proposed conclu sion on this point was incorrect. See Hennessy v. 16 Duryea , 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our courts have 17 repeatedly held that, in summary calendar cases, the burden is on the party opposing 18 the proposed disposition to clearly point out errors in fact or law.”). 195 {5} With respect to trial counsel’s failureto properly subpoena defense witness 1 Jason Avery for trial, we noted in our cal endar notice that Defe ndant had not informed 2 this Court what testimony this witness would have provided, other than the 3 generalized claim that he would have laid a foundation for the admission of 4 Intoxilyzer 8000 logs. [CN 4] Further, we noted that the record does not appear to 5 contain any evidence of how the informati on from Mr. Avery would have changed the 6 outcome of the proceedings, nor does the record otherwise indicate the significance 7 of the logs or their potential impact on th e case. [CN 4] Therefore, we proposed to 8 conclude that Defendant had not demonstr ated a prima facie case of ineffective 9 assistance of counsel for the failure of hi s counsel to subpoena Mr. Avery for trial. Cf. 10 State v. Dartez , 1998-NMCA-009, ¶ 27, 124 N.M. 455, 952 P.2d 450 (holding that 11 counsel’s failure to interview the witness was not prejudicial, for purposes of a claim 12 of ineffective assistance, inthe absence of any indicati on that the witness’s testimony 13 would have benef itted the defendant). 14 {6} In his memorandum in opposition, Defendant characterizes Mr. Avery’s 15 potential testimony as “crucial” to challenging the “validity and reliability” of his 16 breath alcohol results. [MIO 3-4] However, Defendant again fails to describe the 17 content of Mr. Avery’s potential testimony or the details of any evidence he wished 18 to introduce but could not due to Mr. Avery’ s absence—and the record itself is devoid 196 of detail as to both—leaving this Court tospeculate as to how exactly Mr. Avery’s 1 testimony would have benefitte d Defendant. Thus, we are notconvinced that we were 2 incorrect in our proposed disposition on this issue. See Hennessy , 1998-NMCA-036, 3 ¶ 24. 4 {7}Consequently, we hold that Defendant has not established a prima facie case of 5 ineffective assistance of counsel given the deficiency of the record. However, as we 6 noted in our calendar notice, Defendant may pursue the issue in a habeas proceeding 7 as our courts prefer habeas proceedings so that “the de fendant may actually develop 8 the record with respect to defense counsel’s actions.” State v. Arrendondo , 2012- 9 NMSC-013, ¶ 38, 278 P.3d 517. 10 {8} Accordingly, for the reasons stated above, as well as those provided in our 11 notice of proposed disposition, we affirm. 12 {9} IT IS SO ORDERED. 13

_______________________________________ 14 MICHAEL E. VIGIL, Chief Judge 15

WE CONCUR: 16

___________________________ 17 JAMES J. WECHSLER, Judge 187 ___________________________ 1 JONATHAN B. SUTIN, Judge 2