* This order and judgment is not binding precedent, except under the

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

### MAR 29 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RALPH HERNANDEZ, Petitioner - Appellant, vs. RONALD LYTLE, Warden, Southern New Mexico Correctional Facility and ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents - Appellees. No. 98-2104 (D.C. No. CIV-97-404-JC) (D.N.M.)

ORDER AND JUDGMENT *

Before BALDOCK , KELLY , and HENRY , Circuit Judges.

Mr. Hernandez appeals from the dismissal of his hab eas petition, 28 U.S.C. § 2254. He sought habeas relief on fifteen grounds; the m agistrate judge recommended that the petition be dismissed with pre judice and the district court adopted that recommendation. We granted Mr. Hernan dez a certificate of appealability on the issues of whether he was denie d a fair trial when the trial court denied his motion for a continuance, and whether he received ineffective1 Appointed counsel is to be commended for his vigoro us representation of

Petitioner, and thorough preparation and presentati on of the issues. - 2 - assistance of counsel. We also appointed counsel. 1 After careful review of the parties’ able submissions, we affirm.

Background The complex facts of this case are well documented in the New Mexico Supreme Court’s disposition of Mr. Hernandez’s direct appeal, State v. Hernandez , 846 P.2d 312 (N.M. 1993). Thus, we will give onl y an abbreviated version. Mr. Hernandez was convicted after a jury trial of first degree felony murder, aggravated burglary, attempted robbery, andbattery in connection with the beating and suffocation of an elderly woman dur ing the robbery of her apartment. He was sentenced to life imprisonment p lus eleven years. Mr. Hernandez had appointed counsel through the pub lic defender department’s contract attorney system. His case wa s originally scheduled for trial in April 1990, but was continued to allow both side s further time to process scientific evidence. Trial was set for May 22, 199 0, but was continued on a defense motion alleging delay in obtaining funds fr om the state public defender’s office to hire an investigator. Trial was reschedu led for August 1990, but was again continued based on a defense motion claiming the need for additional time- 3 -

to prepare the case and to obtain expert witnesses. Trial was reset for October 29, 1990. Five days before trial, Mr. Hernandez’s counsel aga in moved for a continuance, arguing that his expert needed more ti me to analyze the scientific evidence, and that he had only recently received fu nding from the public defender’s office to pay for the expert’s services. After the trial court rejected his motion, counsel renewed his motion on October 2 6, 1990, reciting more fully the reasons he believed a continuance was necessaryto enable Mr. Hernandez to receive a fair trial. The trial court again denied Mr. Hernandez’s motion for a continuance, and the trial began as scheduled on October 29, 199 0. Following a trial in which 34 witnesses were called, including nine for the de fense, Mr. Hernandez was convicted. A. Denial of Motion for Continuance After a thorough review of the record, the New Mexi co Supreme Court determined that the trial court did not abuse its d iscretion when it denied Mr. Hernandez’s October 24, 1990 motion for continuance, Hernandez , 846 P.2d at 322, and notwithstanding the denial of a continuanc e, an adequate defense was presented. Id. at 320. Mr. Hernandez’s petition for a writ of habeas corpu s was filed after the- 4 -

effective date of the Antiterrorism and Effective D eath Penalty Act. Therefore, when we review the state court’s determination, we may not overturn it unless its adjudication of the claim:

(1) resulted in a decision that was contrary to, orinvolved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United State s; or (2) resulted in a decision that was based on an unr easonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. §2254(d). To prevail, Mr. Hernandez mustconvince us that the New Mexico Supreme Court’s resolution of the continuanc e issue was not within the range of reasonable outcomes given the facts and the law. See Brown v. O’Dea , 187 F.3d 572, 580 (6th Cir. 1999). When denial of a continuance is asserted as the bas is for a habeas petition, the petitioner must show that not only was the deni al an abuse of discretion, but also that the denial was " 'so arbitrary and fundam entally unfair that it violates constitutional principles of due process.' " Case v. Mondragon , 887 F.2d 1388, 1396 (10th Cir. 1989) (quoting Hicks v. Wainwright , 633 F.2d 1146, 1148 (5th Cir. 1981)). The denial also must have “materiallyprejudiced the [defendant].” United States v. West , 828 F.2d 1468, 1469 (10th Cir. 1987). While there is no mechanical test to determine whether denial of a motion for continuance is so arbitrary as to violate due process, see id . at 1470, we have set forth several factors to be considered. See Scott v. Roberts , 975 F.2d 1473,- 5 -

1476 (10th Cir. 1992). These factors include: (1) the diligence of the movant; (2) the likelihood that the purpose underlying the expr essed need for the continuance would be accomplished by granting it; (3) the incon venience likely to be suffered by the opposing party, its witnesses, and the courtby granting it; and (4) the reason asserted for the continuance and the harm th e movant might suffer as the result of a denial. Id . (citing West , 828 F.2d at 1470). Given these factors, we cannot conclude that habeas relief is warranted bas ed upon a violation of Mr. Hernandez’s due process rights. Mr. Hernandez’s counsel moved the court for a conti nuance five days prior to trial, claiming that he needed additional time t o allow his forensic pathologist to examine evidence, to secure a hair identificatio n expert, to locate certain alibi witnesses, and because he was unprepared and neededassistance from an experienced co-counsel. The record shows a lack of diligence on the part of counsel to obtain these experts or otherwise prepar e himself for trial. Counsel began representing Mr. Hernandez almost one full ye ar before the scheduled trial date. During that time, he delayed in attempting t o secure experts and funding for those experts, and in familiarizing himself with the scientific aspects of the

case. This continuance would have been Mr. Hernandez’s th ird. The trial court ruled that it could not grant yet another continuan ce when it took into account the- 6 -

inconvenience to both the witnesses and the prosecu tion of rescheduling the proceedings a third time. Additionally, the trial court legitimately was concerned about the impact of another continuance on the vict im’s family. Although a continuance would have at least potentia lly enabled Mr. Hernandez’s counsel to line up experts to evaluate the scientific evidence, its denial does not translate into a violation of Mr. H ernandez’s due process rights. Given all of the trial evidence, Mr. Hernandez over states the extent to which the state relied on scientific evidence in proving its case, as well as the likely impact a blood spatter expert could provide. Nor are othe r reasons offered in support of a continuance persuasive. Thus, we conclude that the New Mexico Supreme Court’s resolution of this issue was not unreasonab le, and that the failure to grant the continuance does not warrant habeas relief. B. Ineffective Assistance of Counsel Claim Mr. Hernandez contends that his trial attorney was constitutionally ineffective in several respects. He argues that co unsel inexcusably failed to present expert forensic, hair, and fingerprint evid ence. In addition, he cites his counsel’s admitted lack of preparedness. To establish a claim of ineffective assistance of c ounsel, appellant must show both that his counsel's representation fell be low an objective standard of reasonableness, and that counsel's deficient performance prejudiced his defense.- 7 -

See Strickland v. Washington , 466 U.S. 668, 687 (1984). To prove prejudice, he must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Rogers v. United States , 91 F.3d 1388, 1392 (10th Cir.1996) (citations and quotations omitted). After a thorough review of the record, the New Mexi co Supreme Court concluded that Mr. Hernandez had failed to meet the second prong of the Strickland test, demonstration of prejudice. Hernandez , 846 P.2d at 322-24. As discussed previously, we must determine if the stat e court decision was contrary to Supreme Court precedent or was based on an unrea sonable determination of the facts. 28 U.S.C. §2254 (d)(1) and (2). The me re fact that we disagree with a state court’s analysis or that we would reach a dif ferent result if evaluating the evidence on our own does not empower us to grant the writ. See Matteo v. Superintendent, Sci Albion , 171 F.3d 877, 890 (3d Cir. 1999). Because we are convinced that the New Mexico Supreme Court’s decis ion was not improper under the above standard, we do not grant habeas re lief. We note at the outset that in reaching its decision based on the second prong of Strickland , the state supreme court never ruled on the first prong (whether counsel’s performance fell below an object ive standard of- 8 -

reasonableness.) Looking at the second prong first is commonly done. See Strickland , 466 U.S. at 697. We wish to emphasize that in up holding the state supreme court’s denial of Mr. Hernandez’s ineffecti ve assistance of counsel claim we are in no way condoning trial counsel’s la ck of preparation in certain areas. Trial counsel’s inadequate preparation in these areas was a disservice to his client and implicates N.M.R. Prof. Conduct 16-1 01, a mandatory duty of competent representation, which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” 2 N.M.R. Ann. § 16-101 (Michie 2000) (emphasis added) . Nonetheless, we cannot say that the New Mexico Supreme Court could not rea sonably find a lack of prejudice. Mr. Hernandez does not persuade us of a reasonable probability that the result of the trial would have been different when viewed against the backdrop of the state supreme court’s step-by-step analysis of why it would not. We cannot say that this analysis was based on an unreasonable determination of the facts or an unreasonable application of the law. Based on the nature of the evidence against him, neither a forensics expert nor a finge rprint expert would likely have been of much service to Mr. Hernandez. See Hernandez , 846 P.2d at 323-24. Nor does Mr. Hernandez show how a hair expert wouldhave called into further question the analysis of the state’s reputable and experienced hair expert.- 9 -

Additionally, strong evidence against Mr. Hernandez was offered by a witness who testified that Mr. Hernandez confessed committi ng the murder to him. This witness was able to provide details about the crime that had not been released to the public. Mr. Hernandez’s counsel competently cr oss-examined this witness and offered witnesses to question his credibility. Finally, the New Mexico Supreme Court determined that counsel’s performance at trial belied his professed lack of preparation, finding that his num erous motions were germane and his examination of witnesses was competent and professional. C. Evidentiary Hearing Alternatively, Mr. Hernandez seeks an evidentiary h earing to demonstrate the prejudice he suffered as a result of the trial court’s denial of his motion for continuance. He contends that the hearing would al low him to show, among other things, the shortcomings of hair analysis, th e difficulties trial counsel had in obtaining funding for experts, and how overworke d counsel was at the time of the trial. Aplt. Br. at 33-37. However, viewing the record in its entirety, this evidence would be largely cumulative. The issues r aised were properly resolved on the basis of the record and the law and, as such , an evidentiary hearing is not required. See Castro v. Ward , 138 F.3d 810, 832 (10th Cir. 1998). AFFIRMED.

Entered for the Court- 10 - Paul J. Kelly, Jr. Circuit Judge