* This order and judgment is not binding precedent, e xcept under the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

1 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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. 

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

### FEB 19 2003 

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

VALENTE LOPEZ,

Petitioner - Appellant,

v. JOE WILLIAMS, Warden, New Mexico Correctional Facility; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents - Appellees. No. 00-2247 D.C. No. CIV-97-952-MV (D. New Mexico)

ORDER AND JUDGMENT *

Before EBEL , ANDERSON , and KELLY , Circuit Judges.

Petitioner Valente Lopez appeals the district court ’s denial of his habeas corpus petition. 1 The federal claim raised is a claim that the due process clause of the Fourteenth Amendment was violated when Lopez wa s convicted of the crime2 § 30-6-1(C) states:

Abuse of a child consists of a person knowingly, intentionally or negligently, and without justifiable cause, causing or permitting a child to be: (1) placed in a situation that may endanger the chi ld’s life or health; (2) tortured, cruelly confined or cruelly punished; or (3) exposed to the inclemency of the weather. -2- of child abuse without requiring proof of an essential element of scienter. See Fiore v. White , 531 U.S. 225, 228-29 (2001). Lopez was convictedof child abuse under New Mexico law, which, at the time of his ben ch trial, required a showing of only ordinary civil negligence. He was sentence d to nineteen years’ imprisonment. While his conviction was pending on appeal before the New Mexico Court of Appeals, the New Mexico Supreme Cou rt interpreted the child abuse statute to require a showing of criminal negl igence. The court of appeals, however, affirmed his conviction and sentence. Lop ez claims that his conviction violates his federal constitutional right to have the State prove each element of a criminal offense beyond a reasonable doubt. We g ranted a certificate of appealability on this issue, and we reverse.
I. Procedural History Lopez was charged with first-degree child abuse in violation of N.M. Stat. Ann. § 30-6-1(C). 2Up through the time that Lopez was convicted and sentenced, New Mexico courts had interpreted the child abuse s tatute as a strict liability-3-

statute, which required no showing of criminal intent. See, e.g., State v. Lucero , 647 P.2d 406, 407-08 (N.M. 1982); State v. Crislip , 796 P.3d 1108, 1115 (N.M. Ct. App. 1990). After Lopez appealed his con viction and sentence to the New Mexico Court of Appeals, but before that court decided his appeal, the New Mexico Supreme Court decided Santillanes v. State

. In Santillanes, the highest court of New Mexico held that “our interpretation of [§ 30-6-1(C)] requires that the t erm ‘negligently’ be interpreted to require a showing of criminal negligence insteadof ordinary civil negligence.” 849 P.2d 358, 362 (N.M. 1993). It went on to state : [W]e conclude that the civil negligence standard, a s applied to the child abuse statute, improperly goes beyond its int ended scope and criminalizes conduct that is not morally contemptib le. . . . We construe the intended scope of the statute as aimin g to punish conduct that is morally culpable, not merely inadve rtent. . . . We interpret the mens rea element of negligence in the child abuse statute, therefore, to require a showing of crimina l negligence instead of ordinary civil negligence. That is, to satisfy the element of negligence in Section 30-6-1(C), we require proof that the defendant knew or should have known of the danger involved an d acted with a reckless disregard for the safety or health of th e child. Id. at 365. Recognizing that its holding was a departu re from previous judicial interpretation of the statute, the court went on to address the appropriate application of its decision to other cases. After analyzing prospective or retroactive application under Linkletter v. Walker , 381 U.S. 618 (1965), the court held that its decision was not retroactive and woul d be applied prospectively.-4-

Santillanes , 849 P.2d at 367. And, in the very last sentence of the opinion, the court stated that its decision would “govern all ca ses which are now pending on direct review, provided the issue was raised and pr eserved below, and all cases presently pending but in which a verdict has not been reached.” Id. at 368. After Santillanes was decided, Lopez amended his appeal to claim that his conviction could not stand because the State did no t prove criminal negligence, which Santillanes held was an element of the crime. The court of ap peals, however, affirmed Lopez’s conviction and sentence, holding that he was not entitled to the benefit of the Santillanes decision because he had not preserved the issue at trial. The court held: [A]lthough the standard of criminal negligence may not have been met in this case, an issue we do not decide, the ci vil standard was met. As we pointed out in the second calendar noti ce, the standard set forth in Santillanes does not apply to this case. This case was prosecuted and Defendant was sentenced long before the Santillanes decision, and there is no indication that the Santillanes issue was raised and preserved below. Therefore, the trial c ourt relied on the correct standard and we will uphold its determinati on. R., Tab 1, Ex. F at 3-4 (citation omitted). Lopez then petitioned for a writ of certiorari, seeking review by the New Mexico Suprem e Court; that petition was denied. Lopez sought state post-conviction relief, again ar guing that his conviction violated his federal due process rights in light of the Santillanes decision. The-5-

state court summarily denied the post-conviction pe tition, and the New Mexico Supreme Court denied Lopez’s request for review. Having exhausted his state remedies, Lopez filed a petition for habeas relief pursuant to 28 U.S.C. § 2254 in federal district court. The magistrate judge recommended that the petition be denied; the distri ct court summarily adopted the magistrate’s findings and recommendation and dismis sed the habeas petition.

II. AEDPA and Procedural Bar If a state court denies a federal claim on the meri ts, we review the claim within the constraints of the Antiterrorism and Eff ective Death Penalty Act (AEDPA). McCracken v. Gibson , 268 F.3d 970, 975 (10th Cir. 2001), cert. denied, 123 S. Ct. 165 (2002). We may grant relief only if the state court decision “‘was contrary to, or involved an unreason able application of, clearly established Federal law, as determined by the Supre me Court of the United States,’ . . . or ‘was based on an unreasonable det ermination of the facts in light of the evidence presented in the State court proceeding.’” Id. (quoting 28 U.S.C. § 2254(d)(1) and (2)). If a state court denies a federal claim on the basi s of a separate state procedural deficiency, we cannot reach the merits o f the claim at all unless (1) the state ground of decision was not adequate and indep endent of federal law; or-6-

(2) the petitioner has established a basis for excu sing his procedural default. Id. at 976. And, finally, if a state court did not reach the me rits of a federal claim, and our review is not barred by an adequate and indepen dent state procedural disposition, we review the claim on the merits with out constraint imposed by virtue of the state court judgment: we review the federal district court’s legal conclusions de novo and factual findings for clear error. Id. at 975. In deciding whether the state court addressed the m erits of Lopez’s federal due process claim, we look to the substance of the state court disposition. Lopez argued on appeal that his conviction violated feder al due process, in light of Santillanes’ holding that criminal negligence was an essential element of felony child abuse, because the State had been required to prove only ordinary negligence, not criminal negligence, at his trial. The New Mexico Court of Appeals refused to apply Santillanes to Lopez’s case and denied relief because Lopez did not preserve the mens rea issue at trial. However it is denominated, that is plainly a procedural default ruling. Recently, in Cargle v. Mullin we clarified when a state appellate court’s rejection of an unpreserved claim is properly deeme d a procedural default, even when it has not been explicitly designated as such by the state court. ___ F.3d ___, Nos. 01-6027, 01-6041, 2003 WL 170427 , at *7 (10th Cir. Jan. 27,-7-

2003). Although Cargle involved the slightly different context of appellat e plain-error review, it is instructive. In Cargle , we concluded that: A state court may deny relief for a federal claim o n plain-error review because it finds the claim lacks merit underfederal law. In such a case, there is no independent state ground o f decision and, thus, no basis for procedural bar. Consistent withthat conclusion, the state court’s disposition would be entitled to § 2254(d) deference because it was a form of merits review. On the oth er hand, a state court could deny relief for what it recognizes or a ssumes to be federal error, because of the petitioner’s failure to satisfy some independent state law predicate. In such a case, t hat non-merits predicate would constitute an independent state gro und for decision which would warrant application of procedural-bar p rinciples on federal habeas. If the state procedural bar were then excused for some reason, the federal court would be left to res olve the substantive claim de novo, unconstrained by § 2254( d). Id. (citation omitted)

. The case before us, unencumbered by the extra layerof plain-error review, presents an even more straightf orward case of procedural bar. Here, the state court summarily rejected Lopez’s fe deral claim because he failed to satisfy an independent state predicate–he did no t preserve the issue at trial. The state court’s preservation requirement, a non-m erits predicate to its rejection of Lopez’s federal claim, is plainly an independentstate ground that implicates procedural-bar principles on federal habeas. Id. The critical question, therefore, is whether there is reason to excuse the procedural bar. We will not consider issues on habeas review that h ave been defaulted in state court on an independent and adeq uate state procedural ground, unless the petitioner can demons trate cause and3 This is the same error regardless of whether trial is by jury or the court. -8- prejudice or a fundamental miscarriage of justice. A state procedural ground is independent if it relies on state law, rather than federal law, as the basis for the decision. To be adequate , a state’s procedural rule must have been firmly established and regularly followed when the purported default occurred. McCracken , 268 F.3d at 976 (citations and quotations omitted ). It is clear that the state’s procedural bar in this case was independentof federal law. The bar rests on the lack of issue preservation, which is clearlya matter of state law. It is not at all clear, however, that this procedural rule–th at lack of proof on an essential element of a crime must be preserved to receive anyreview on appeal (including fundamental-error review)–was firmly established orregularly followed at the time of Lopez’s trial. This is critical here becau se relieving the State of its burden to prove an essential element of the offense is fundamental error. See State v. Osborne , 808 P.2d 624, 632 (N.M. 1991). 3 The concept of fundamental error is firmly establis hed in New Mexico law. In a pre- Santillanes decision, the New Mexico Supreme Court held that “[ a]n exception to the general rule barring review of que stions not properly preserved below . . . applies in cases which involve fundamental error. Fundamental error cannot be waived.” Id. (quotation omitted). Thus, for example, because the failure to instruct on the essential elements of anoffense is fundamental error, “it is irrelevant that the defendant was responsibl e for the error by failing to-9-

object to an inadequate instruction or, as occurredin this case, by objecting to an instruction which might have cured the defect in the charge to the jury.” Id

. Notably, in Osborne , the court was faced with a situation similar to L opez’s. While that defendant’s direct appeal was pending, the New Mexico Supreme Court decided that “unlawfulness” was an essential element of criminal sexual contact of a minor, where it had not previously bee n recognized as such. Under the circumstances of that case, the high court appl ied fundamental-error review and reversed the conviction. Id. at 633. In a post- Santillanes case, State v. Kirby , 930 P.2d 144 (N.M. 1996), the New Mexico Supreme Court was again faced with a sim ilar situation. After the defendant had been tried and convicted, but before his appeal had been decided, the state appeals court decided that criminal negli gence was an element of involuntary manslaughter. The defendant had not, h owever, objected at trial to the lack of a criminal negligence element in his ju ry instructions. Nonetheless, the appeals court applied the intervening decision in the case. The state supreme court affirmed, holding that omitting an essential element from the jury instructions was fundamental error subject to corre ction on appeal despite the lack of preservation at trial. Kirby , 930 P.2d at 145-46. Moreover, the court expressly noted Santillanes’ unexplained disregard for this distinction. The Kirby court recognized that “[r]esponsibility for instructing the jury rests solely with the trial4 We stress that retroactivity is not the issue in this case. Santillanes clearly

stated that its holding would apply to cases pendin g on direct review. 849 P.2d at 368; see generally State v. Rogers , 602 P.2d 616, 618 (N.M. 1979) (holding that concerns of retroactive application arise “only forcauses that have been finalized,” which means that appeal rights have bee n exhausted). This case is about claim preservation, i.e., procedural default. -10- court. It is the duty of the court, not the defend ant, to instruct the jury on the essential elements of a crime. This distinction un fortunately was not drawn in the preservation proviso in Santillanes , but it is a distinction that we must make in this case.” Id (quotation and citation omitted) ; see also State v. Acosta , 939 P.2d 1081, 1084-86 (N.M. Ct. App. 1997) (following Osborne and Kirby and applying fundamental-error principle to reverse conviction f or failure to instruct on essential element recognized in decision issued aft er defendant’s trial but before conclusion of appeal). 4
In addition to these New Mexico authorities that se em particularly applicable to our case, the following cases represe nt an illustrative, though not exhaustive, list of cases in which New Mexico court s afforded fundamental-error review to issues that were not preserved at trial: State v. Castro , 53 P.3d 413, 413-14 (N.M. Ct. App. 2002) (reversing conviction); State v. Cunningham , 998 P.2d 176, 178-79 (N.M. 2000); State v. Green, 861 P.2d 954, 960 (N.M. 1993) (reversing conviction); State v. Elmquist , 844 P.2d 131, 135-11-

(N.M. Ct. App. 1992) (reversing conviction); Ortiz v. State , 749 P.2d 80, 82-83 (N.M. 1988) (reversing conviction). Our examination of New Mexico law shows that the pr ocedural default rule enforced against Lopez to bar even fundamental-erro r review, was not firmly established and regularly followed either before, at the time of, or after Lopez’s trial. Consequently, the procedural default in thi s case does not preclude federal habeas review of the merits of Lopez’s federal claim. See Romano v. Gibson , 239 F.3d 1156, 1170 (10th Cir. 2001), cert. denied , 534 U.S. 1045 (2001). We are left to exercise our independent judgment in ad dressing the merits of Lopez’s claim. See McCracken, 268 F.3d at 975.

III. Merits “[T]he Due Process Clause of the Fourteenth Amendme nt forbids a State to convict a person of a crime without proving the ele ments of that crime beyond a reasonable doubt.” Fiore , 531 U.S. at 228-29 (holding conviction based on conduct that statute, properly interpreted, does no t prohibit violates due process). The New Mexico Supreme Court has held that the “neg ligence” element of the child abuse statute requires proof of criminal negl igence instead of ordinary negligence: “proof that the defendant knew or shou ld have known of the danger involved and acted with a reckless disregard for th e safety or health of the child.” Santillanes , 849 P.2d at 365. It is clear from the record that the bench trial was-12-

conducted under the assumption, by both the parties and the court, that the State was not required to prove intent and that proof beyond a reasonable doubt of civil negligence would satisfy the State’s burden. R., T rial Tape #4, 1, 9, 12. Our review of the trial tapes leads us to conclude thatthe State was not required to prove criminal negligence beyond a reasonable doubt , in violation of Lopez’s right to due process under the Fourteenth Amendment . This conclusion does not, however, end our inquiry. We will grant habeas rel ief for a constitutional violation only if the error was not harmless. “When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had ‘substanti al and injurious effect or influence in determining the jury’s verdict,’ that error is not harmless.” O’Neal v. McAninch , 513 U.S. 432, 436 (1995) (quoting Brecht v. Abrahamson , 507 U.S. 619, 637 (1993)). As we stated, there were repeate d references at trial to the fact that Lopez could be convicted upon proof of ordinary civil negligence, that the crime required no criminal intent. In addition, in the course of stating his finding of guilt, the trial judge told Lopez that it was “v ery clear . . . it was accidentally done. I don’t think there was any testimony . . . that would indicate you intentionally harmed the child. But I do find you did commit child abuse negligently.” R., Trial Tape #12.5 On the other hand, we cannot say that the evidence of criminal negligence

is so deficient that no rational trier of fact coul d have found criminal negligence beyond a reasonable doubt, see Jackson v. Virginia , 443 U.S. 307, 319 (1979), which allays any double jeopardy concerns that might arise regarding retrial. See Cargle , 2003 WL 170427, at *25-26. -13- Our review of the trial tapes does not convince us that the trial court found Lopez guilty upon a showing of criminal negligence; the evidence of criminal negligence is decidedly underwhelming. 5 We are left with, at the very least, grave doubt as to whether the court’s conclusion that the state was not required to prove criminal negligence had substantial and injurious e ffect or influence in determining its verdict. As a result, we cannot say that this error, which clearly affects substantial rights, was harmless, and we grant habeas relief. See O’Neal , 513 U.S. at 445. We REVERSE the district court’s judgment and grant the writ, with the condition that the State may retry Lopez within a r easonable time. If retrial is not commenced within a reasonable time, the State may b e subject to further federal proceedings regarding his release. See Cargle , 2003 WL 170427, at *26.

Entered for the Court

David M. Ebel Circuit Judge