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

### October 4, 2005

Clerk of Court UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL ARMIJO,

Petitioner-Appellant, No. 05-2076

v. District of New Mexico JOE WILLIAMS,

Respondent-Appellee. (D.C. No. CIV-04-504-JB/LFG)

ORDER

Before SEYMOUR , HARTZ , and McCONNELL , Circuit Judges.
Paul Armijo, a state prisoner proceeding pro se , seeks a certificate of appealability (COA) that would allow him to appeal from the district court’s order which denied his habeas corpus petition under 28 U. S.C. § 2254. See 28 U.S.C. § 2253(c)(1)(A). We liberally construe Mr. Armijo’s pleadings in compliance with
Haines v. Kerner , 404 U.S. 519, 520 (1972). Because we conclude th at Mr. Armijo has failed to make “a substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his requestfor a COA, and we dismiss the appeal.-2- I. Factual and Procedural Background Mr. Armijo was charged under New Mexico law with ch ild abuse, aggravated assault against a household member, and aggravated battery upon a peace officer. During discovery, the state court g ave the prosecution a deadline for producing two key witnesses, and a suggestion t o Mr. Armijo’s attorney, Joseph Riggs, to file a motion to dismiss two of th e three charges in the event the State failed to meet the deadline. Specifically, t he judge stated: “If [the witnesses] are not provided or interviews not sched uled before that time, Mr. Riggs, file the appropriate motion and those counts may go away only with the battery on a peace officer.” Mag. J. Rep. & Rec. 3 -4 (quoting State Dist. Ct. Hr’g, June 25, 2001). The State failed to produce the witnesses; however, Attorney Riggs decided not to bring the motion to d ismiss. On July 20, 2001, Attorney Riggs moved to withdraw from the case, as his relationship with Mr. Armijo had deteriorated to the point the two could no longer communicate. On January 15, 2002, Phillip Sapien became Mr. Armi jo’s defense counsel for the remainder of the proceedings. On April 25, 2002, Attorney Sapien filed a motion to dismiss the first two counts (child abuse and aggravated assault against a household member), noting in the motion that Atto rney Riggs had made an oral agreement with an Assistant Attorney General to hav e the two charges dismissed if the State’s witnesses were not located. On May 1, 2002, the state court held a-3-

hearing on the motion to dismiss. Although the State was unable to locate the two witnesses, it claimed it had sufficient evidence to proceed. The court agreed with the State, and decided to exclude the testimony of the two witnesses should they be located rather than dismissing the counts. The court advised the State that it might be difficult for the State to prove its entir e case without the witnesses, and recessed so that the parties could discuss a possib le plea agreement. Later that day, Mr. Armijo signed the plea agreemen t. Pursuant to the agreement, Mr. Armijo pleaded no contest to three c harges, including the original charges of aggravated assault against a household m ember and aggravated battery upon a peace officer. The third charge, aggravated assault against another individual, was charged separately by information a nd added to the plea agreement. In addition, Mr. Armijo waived his righ t to appeal, and waived “all motions, defenses, objections, or requests which [M r. Armijo] has made or could make concerning the Court’s entry of judgment....” Plea Agreement 4. The State, for its part, agreed to dismiss the child abuse cou nt, and not to pursue habitual offender proceedings against Mr. Armijo. Mr. Armijo received a sentence of four and a half y ears; however, the sentence was suspended, and Mr. Armijo was placed o n probation. In September 2002, Mr. Armijo violated a condition of probation and was incarcerated for the remaining term of imprisonment. Following convicti on for the probation-4-

violation, Mr. Armijo filed a petition for writ of habeas corpus in New Mexico state court, principally challenging matters leadin g up to his plea agreement. His claims included ineffective assistance of counsel, violation of the Due Process and Equal Protection Clauses, and a claim that he w as coerced into signing the plea agreement. The state court denied Mr. Armijo’ s petition, and found that “Mr. Armijo freely and voluntarily chose to enter aplea of no contest to the charges brought against him,” also stating that “[t ]he record of the plea elocution [sic] supports the validity of the plea in that [Mr . Armijo] stated that he was not coerced, that he felt the plea was in his best inte rests, that he understood the plea, that he had enough time to speak with his attorney prior to entering the plea and that he was satisfied with the representation that he had been given.” Mag. J. Rep. & Rec.14-15 (quoting State Dist. Ct. Order 3). After the New Mexico Supreme Court denied Mr. Armij o’s petition for writ of certiorari, Mr. Armijo filed a habeas corpus pet ition in federal district court under 18 U.S.C. § 2254, alleging (1) ineffective assistance of counsel by Attorney Riggs, (2) that his plea was involuntary, and (3) that he did not receive fair notice of the charge in the information added to the plea agreement. The magistrate judge entered findings of fact and recommended thatthe district court deny Mr.1 The district court directed Respondents to supply the entire underlying

record; however, the transcript of the plea proceed ings could not be produced because the court reporter’s disk containing the pr oceedings was defective. Affidavit of Wendy Morrison, New Mexico State CourtReporter, Jan. 18, 2005. -5- Armijo’s petition. Although the record of the pleaproceedings is unavailable, 1 the magistrate judge concluded that there was no ev idence suggesting that Mr. Armijo was coerced into entering the agreement, cit ing the factual findings made by the state court that served as the basis for its determination that the plea was voluntary. In Mr. Armijo’s objections to the magistrate judge’ s report, Mr. Armijo raised a new claim, alleging that by failing to pro duce two key witnesses at trial, the State had committed a Bradyviolation. See Strickler v. Greene , 527 U.S. 263, 281-82 (1999) (outlining the elements of a Brady violation). The district court adopted the magistrate judge’s recommended disposit ion and denied Mr. Armijo’s petition. With regard to the alleged Bradyviolation, the district court ruled that Mr. Armijo could not raise issues for the first tim e in objections to a magistrate judge’s recommended disposition. Moreover, the cou rt found no evidence of suppression by the State necessary to establish a Brady violation. In seeking a certificate of appealability, Mr. Ar mijo raises three issues: (1) that he was coerced into entering into the plea agr eement; (2) that the State committed a Bradyviolation when it failed to produce two key witnes ses; and (3)-6-

that the district court’s failure to conduct an evi dentiary hearing regarding his claim of ineffective assistance of counsel violated his Due Process rights.
II. Discussion A certificate of appealability (“COA”) must be gran ted before an appellate court may review the merits of a habeas corpus appe al brought under 28 U.S.C. §
2254. See 28 U.S.C. § 2253(c)(1). A COA will issue “only if the applicant has made a substantial showing of the denial of a const itutional right,” 28 U.S.C. § 2253(c)(2), which requires “a demonstration that . . . includes showing that reasonable jurists could debate whether (or, for th at matter, agree that) the petition should have been resolved in a different m anner or that the issues presented were ‘adequate to deserve encouragement t o proceed further.’” Slack v. McDaniel , 529 U.S. 473, 484 (2000) (quoting Barefoot v. Estelle , 463 U.S. 880, 893 & n.4 (1983). First, Mr. Armijo argues he was coerced into signin g the plea agreement. Whether a plea agreement was voluntary is a questio n of law reviewed de novo. United States v. Kramer , 168 F.3d 1196, 1200 (10th Cir. 1999). While ques tions of law do not require that we give the same deferen ce due a state court’s factual determinations, we recognize that the Anti-Terroris m and Effective Death Penalty Act has “increased the deference federal habeas cou rts extend to state court’s legal determinations.” Herrera v. Lemaster , 225 F.3d 1176, 1179 (10th Cir.-7-

2000), cert. denied, 537 U.S. 1197 (2003). Moreover, “[t]o the extentthat the question of whether the defendant knowingly and vol untarily made the plea depends on findings of fact made by the state courton habeas review, these findings, with specified exceptions, carry a presumption of correctness.” Cunningham v. Diesslin , 92 F.3d 1054, 1060 (10th Cir. 1996). Although the record of the plea proceedings is unav ailable, no evidence exists supporting Mr. Armijo’s claim of coercion. To the contrary, Mr. Armijo signed the plea agreement with Attorney Sapien pres ent to explain and discuss its terms and implications, and Mr. Armijo has not alle ged ineffective assistance of counsel with respect to Attorney Sapien’s performan ce before or during the plea proceedings. Nothing in the record indicates that the state court, prosecution, or defense attempted to coerce Mr. Armijo into pleadin g no contest. Furthermore, Mr. Armijo objected to the plea proceedings only af ter violating his probation and being incarcerated. Finally, the state court found that the plea agreement was voluntary, based on Mr. Armijo’s statements during the plea allocution and other available evidence. Based on the evidence before the court, we conclude that the state court’s adjudication in this matter was not based on any un reasonable determination of the facts in light of the evidence presented in the state court proceedings. Mr.-8-

Armijo’s bare allegations of coercion are insuffici ent to make a substantial showing of the denial of a constitutional right. Next, Mr. Armijo argues that by failing to produce two key witnesses, the State committed a Brady violation. This claim fails because Mr. Armijo did not raise this argument in his federal habeas petition and related pleadings. As the district court correctly explained, Mr. Armijo cann ot raise an issue for the first time in his objections to the magistrate judge’s re commended disposition. Marshall v. Chater , 75 F.3d 1421, 1426-27 (10th Cir. 1996). Finally, Mr. Armijo argues that Attorney Riggs prov ided ineffective assistance of counsel by failing to file a motion t o dismiss two of the three counts against him after the State failed to meet its disc overy deadline. This argument is without merit. To prove ineffective assistance of counsel, Mr. Armijo must show that counsel’s deficient performance prejudiced his defense in that the result would have been different but for the attorney’s er rors. Strickland v. Washington , 466 U.S. 668, 694 (1984). Attorney Riggs’s failure to file the motion to dism iss did not prejudice the outcome of his case, because Mr. Armijo’s subsequent attorney, Phillip Sapien, later filed the motion. The state court fully cons idered the motion and declined to dismiss the charges against Mr. Armijo, deciding in stead to exclude testimony by the missing witnesses if they were found. To find prejudice, we would have to-9-

speculate that with different timing, the trial jud ge would have ruled differently on an identical motion. In addition, rather than c hallenging the evidence against him, Mr. Armijo voluntarily pleaded no contest to o ne of the two charges (aggravated assault against a household member) at issue, while the State agreed to drop the other charge (child abuse) and to refra in from seeking habitual offender status. In short, Mr. Armijo cannot show that Attorney Rigg s’s performance prejudiced the outcome of his case. As a result, Mr. Armijo has not demonstrated that reasonable jurists could debate w hether he received ineffective assistance of counsel in violation of his constitut ional rights. Mr. Armijo has therefore failed to make a substanti al showing of the denial of a constitutional right under each of his argumen ts. Accordingly, we DENY Paul Armijo’s request for a COA and DISMISS this appeal. Entered for the Court, Michael W. McConnell Circuit Judge