1 We construe pro sepleadings liberally. Ledbetter v. City of Topeka, Kan., 318

F.3d 1183, 1187 (10th Cir. 2003). 

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

### November 2, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BLAKE SCOTT, Petitioner - Appellant,

v. JOE ROMERO, Warden, Central New Mexico Correctional Facility; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents - Appellees. No. 04-2262 (D. New Mexico) (D.Ct. No. CIV-04-241 MV/RLP)

ORDER DENYING CERTIFICATE OF APPEALABILITY

AND DISMISSING APPEAL

Before KELLY , O’BRIEN , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioner-Appellant Blake Scott, a state prisoner appearing pro se , 1 seeks a2In his petition before this Court, Scott argues he “was denied a fair and impartial

trial.” (COA Petition at 3.) Although he does not articulate the precise basis for this claim in his COA petition, this is the same language used in his Sixth Amendment claim before the district court. -2- certificate of appealability (COA) allowing him to appeal the district court's order denying his petition for writ of habeas corpus purs uant to 28 U.S.C. § 2254. He also moves to proceed in forma pauperis ( ifp ) on appeal. Because we conclude Scott’s claims are procedurally barred and without merit, we deny a COA and dismiss the appeal. The parties are familiar with the facts and we nee d not restate them here. On appeal, Scott reasserts three claims he presente d in the district court, specifically 1) he received ineffective assistance of counsel in his state court trial when counsel failed to object to the admission of a recording of Scott’s telephone call from the police station; 2) that the prosecuti on violated Brady v. Maryland, 373 U.S. 83 (1963), by withholding letters he had w ritten to his mother-in-law and then only placing part of the letters into evid ence; and, 3) that his Sixth Amendment rights were violated when the district co urt failed to allow him to present exculpatory evidence. 2 The magistrate judge recommended Scott’s claims be dismissed because the Bradyand Sixth Amendment claims were procedurally barred and all three claims were without merit. Th e district court adopted the magistrate’s recommendations and dismissed Scott’s habeas petition. In addition-3-

to his three claims, Scott also challenges the dist rict court’s allowance of the State’s motion to dismiss prior to its filing of an answer to his habeas petition.

Analysis Unless this Court issues a COA, Scott may not appea l the dismissal of his § 2254 petition. 28 U.S.C. § 2253(c)(1)(A). “[Secti on] 2253(c) permits the issuance of a COA only where a petitioner has made a ‘substantial showing of the denial of a constitutional right.’” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003) (quoting § 2253(c)(2)). To make the requisite show ing, a petitioner must demonstrate “that reasonable jurists could debate w hether . . . the petition should have been resolved in a different manner or that th e issues presented were adequate to deserve encouragement to proceed furthe r.” Id. (quotation marks and citation omitted). “When the district court denies a habeas petition o n procedural grounds without reaching the prisoner's underlying constitu tional claim, a COA should issue when the prisoner shows, at least, that juris ts of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present a nd the district court is correct-4-

to invoke it to dispose of the case, a reasonable j urist could not conclude either that the district court erred in dismissing the pet ition or that the petitioner should be allowed to proceed further. In such a circumsta nce, no appeal would be warranted.” Id. “[W]hen reviewing the merits of a claim already d ecided by the state courts, we are bound to deny relief unless th e state court’s decision ‘was contrary to, or involved an unreasonable applicatio n of, clearly established Federal law, as determined by the Supreme Court.’” LaFevers v. Gibson , 182 F.3d 705, 711 (10th Cir. 1999) (quoting 28 U.S.C. § 2254(d)). With these principles in mind, we have carefully re viewed the record and agree with the district court’s conclusions. Scottdoes not dispute that he failed to raise either his Brady or Sixth Amendment claims in his direct appeal. Un der New Mexico law, Scott is deemed to have waived thes e claims by failing to raise them on direct appeal. Duncan v. Kerby , 115 N.M. 344, 851 P.2d 466, 468 (1993). “On habeas review, this Court will not con sider issues that have been defaulted in state court on an independent and adeq uate state procedural ground, unless the petitioner can demonstrate cause and pre judice or a fundamental miscarriage of justice.” Hickman v. Spears , 160 F.3d 1269, 1271 (10th Cir. 1998). This Court has previously held that New Mex ico’s procedural bar at issue here is an independent and adequate state procedura l ground. Jackson v. Shanks , 143 F.3d 1313, 1318 (10th Cir. 1998) (“Our review o f New Mexico cases-5-

indicates that New Mexico courts have consistently and even handedly applied the rule waiving issues not raised on direct appeal forpurposes of post-conviction relief.”). Scott has failed to demonstrate cause t hat would avoid the procedural bar with respect to his Bradyand Sixth Amendment claims. See Coleman v. Thompson , 501 U.S. 722, 754 (1991) (“the petitioner . . . m ust bear the burden of a failure to follow state procedural rules.”). In reviewing Scott’s ineffective assistance of tria l counsel claim, the Dona Ana County, New Mexico District Court evaluated whe ther trial counsel’s failure to object to the admission of a recording of Scott’ s telephone call from the police station to his mother was ineffective. Although itquestioned defense counsel’s trial strategy, it noted any error was not prejudic ial because any objection would have been futile. Applying New Mexico v. Coyazo , 936 P.2d 882 (N.M. App. 1997), the district court held Scott had no reasona ble expectation of privacy in a phone call made from the police station, especially where his comments indicated his awareness that the police were listening. This is not an unreasonable application of federal law. See United States v. Turner , 209 F.3d 1198, 1200-01 (10th Cir. 2000) (no objective expectation of priva cy in conversation conducted in a patrol car). Counsel is not ineffective for fail ing to advance a futile argument. See Dever v. Kansas State Penitentiary , 36 F.3d 1531, 1537 (10th Cir. 1994) (“To be ineffective, the representation must have been s uch as to make the trial a-6-

mockery, sham, or farce, or resulted in the depriva tion of constitutional rights.”). Finally, Scott’s objection to the district court’s allowance of a motion to dismiss his habeas petition is based on a misreadin g of the Rules Governing Habeas Corpus Cases Under Section 2254. Rule 4 dir ects the district court judge to either dismiss the case if the petitioner “plain ly is not entitled to relief” or “order the respondent to file an answer, motion , or other response.” (emphasis added). Rule 5(a) explains that “[t]he respondent is not required to answer the petition unless a judge so orders.” The Advisory C ommittee Notes to the 2004 Amendments state that the revised Rule 5 “does not address the practice in some districts, where the respondent files a pre-answer motion to dismiss the petition

. But revised Rule 4 permits that practice and reflec ts the view that if the court does not dismiss the petition, it may require ( or permit ) the respondent to file a
motion .” (emphasis added). The rules do not prohibit th e State from filing a motion to dismiss prior to filing an answer and the Advisory Committee Notes specifically recognize the district court’s discret ion to allow the filing of such motion in lieu of an answer. His claim of judicial misconduct is without merit. Because Scott’s petition is wholly without merit, h e has failed to show the existence of a reasoned, nonfrivolous argument on t he law and facts in support of the issues he raises on appeal. Accordingly, we de ny his request to proceed ifp on appeal.-7- Conclusion Based on the above, we DENY Scott’s request for a COA and DISMISS the appeal. We also DENY his motion for leave to proceed ifp on appeal. Scott shall remit the full amount of the filing fee withi n twenty (20) days of the date of this order.

Entered by the Court: Terrence L. O’Brien United States Circuit Judge