UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

 

TOBY G. CHAVEZ, 

 Petitioner-Appellant, 

v. 

GERMAN FRANCO; STATE OF NEW 

MEXICO, 

 Respondents-Appellees. 

No. 14-2190 

(D.C. No. 1:13-CV-00338-JB-SCY) 

(D.N.M.)

 

ORDER DENYING CERTIFICATE OF APPEALABILITY*

 

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

 

 A New Mexico jury convicted Toby Chavez of first degree felony murder and 

other crimes after he admitted to shooting and killing an elderly man at a gas station. 

The trial court sentenced Mr. Chavez to life plus thirteen and one-half years in 

prison. After pursuing direct appeals and several motions for postconviction relief in 

the state courts, Mr. Chavez filed this petition for habeas corpus under 28 U.S.C. 

§ 2254, claiming ineffective assistance of counsel and various trial court errors. The 

district court denied the petition, and Mr. Chavez now seeks a certificate of 

 

* This order is not binding precedent except under the doctrines of law of the 

case, res judicata, and collateral estoppel. It may be cited, however, for its 

persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

April 17, 2015

Elisabeth A. Shumaker 

Clerk of Court
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appealability. See 28 U.S.C. § 2253(c); Miller-El v. Cockrell, 537 U.S. 322, 335-36 

(2003). 

We may grant a COA, however, “only if the applicant has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This 

requires an applicant to demonstrate “that reasonable jurists could debate whether 

(or, for that matter, agree that) the petition should have been resolved in a different 

manner or that the issues presented were adequate to deserve encouragement to 

proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation 

marks omitted). If a state court adjudicated a claim on the merits, a federal court 

may not grant habeas relief “unless the state-court decision ‘was contrary to, or 

involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court,’ or ‘was based on an unreasonable determination 

of the facts in light of the evidence presented’ in state court.” Al-Yousif v. Trani, 

779 F.3d 1173, 1180 (10th Cir. 2015) (citations omitted) (quoting 28 U.S.C. 

§ 2254(d)). 

 The district court held that the state courts reasonably rejected Mr. Chavez’s 

ineffective assistance of counsel claims, and this conclusion we find ourselves unable 

to debate. Even assuming Mr. Chavez’s allegations are true, and even assuming they 

suggest constitutionally deficient representation, Mr. Chavez never explains how he 

was prejudiced by his attorney’s performance. See Strickland v. Washington, 

466 U.S. 668, 687, 694 (1984). 
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Indeed, for each of the claimed errors there are reasons to believe he wasn’t. 

Mr. Chavez first argues that his attorney didn’t adequately investigate and impeach a 

prosecution witness. But the evidence Mr. Chavez sought to expose — the witness’s 

criminal history and a prior inconsistent statement — ultimately made it before the 

jury anyway. Next Mr. Chavez argues that his attorney failed to explain the 

prosecution’s burden of proof to the jury. But such an explanation was fully 

provided by the trial court in its jury instructions. Mr. Chavez suggests that his 

attorney should have investigated and presented evidence on his drug addiction and 

its effect on his state of mind at the time of the crime. But, as noted by the district 

court, presenting this information to the jury may actually have undercut the selfdefense theory on which he relied. Finally, Mr. Chavez claims he wasn’t properly 

counseled on his right to testify. From the record, however, it appears that the 

account of events he now says he would’ve presented was fully presented to the jury 

in other ways. In short, Mr. Chavez hasn’t shown “a reasonable probability that, but 

for counsel’s unprofessional errors, the result of the proceeding would have been 

different.” Strickland, 466 U.S. at 694. Neither has he carried the added burden of 

demonstrating that the state courts’ decision on this score was unreasonable. See 

28 U.S.C. § 2254(d)(1). 

Mr. Chavez next asserts three claimed trial errors: denial of a motion to 

suppress, bias on the part of the trial judge, and erroneous jury instructions. But as 

the district court saw it, the state courts reasonably denied relief on these claims — a 
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conclusion that again we find hard to debate. Although Mr. Chavez asserts his 

confession should have been suppressed as involuntary, as the district court explained 

there is no support for that theory in the record. Mr. Chavez claims to have been 

impaired and sleep-deprived, but he exhibited no signs of intoxication, his interview 

lasted only twenty-six minutes, and there is no evidence of coercive police activity. 

See United States v. Lamy, 521 F.3d 1257, 1261-62 (10th Cir. 2008) (listing factors 

relevant to a determination of voluntariness). 

 Mr. Chavez claims the trial judge was biased and denied him a fair trial by 

repeatedly reprimanding his attorney. But, as the district court and New Mexico 

Supreme Court observed, the reprimands occurred outside the presence of the jury 

and there is no evidence any alleged bias had any effect on the jury’s verdict. See 

United States v. Erickson, 561 F.3d 1150, 1166 (10th Cir. 2009). 

Finally, Mr. Chavez says the trial court’s instructions failed to inform the jury 

that a conviction for attempted armed robbery was a prerequisite for a conviction 

under the felony murder rule, and failed to instruct the jury on his theory of 

provocation, which would have mitigated his culpability. But as the district court 

observed, the challenged instructions did not “so infect[] the entire trial that the 

resulting conviction violates due process.” Ellis v. Hargett, 302 F.3d 1182, 1186 

(10th Cir. 2002) (internal quotation marks omitted). Indeed, the record reflects that 

the jury was properly instructed on the felony murder rule and attempted armed 

robbery. Likewise, the instructions on voluntary manslaughter and provocation were 
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broad enough to capture Mr. Chavez’s theory of provocation. Under these 

circumstances, no reasonable jurist could debate the district court’s dismissal of these 

claims.1

The application for a COA is denied and the appeal is dismissed. 

 ENTERED FOR THE COURT 

 Neil M. Gorsuch 

 Circuit Judge 

 

1

 Mr. Chavez raises several other instructional errors for the first time in his 

application for a COA. Because they were not presented in his habeas petition in the 

district court, we decline to consider them now. See United States v. Viera, 674 F.3d 

1214, 1220 (10th Cir. 2012).