* This order and judgment is not binding precedent, e xcept under the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

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

### MAY 26 2000 

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

ROBERT DAVIS,

Petitioner-Appellant,

v. TIM LEMASTER, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. No. 99-2161 (D.C. No. CIV-97-840-JC) (D. N.M.)

ORDER AND JUDGMENT *

Before KELLY , HENRY , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.1 Petitioner filed two petitions signed and dated on the same date. The

district court treated the second one as a suppleme nt to the original application. We therefore treat it as one petition. See R. Vol. I, doc. 14 at 1.

2 Our review of the record reflects that petitioner’s federal habeas petition was untimely filed under 28 U.S.C. § 2244(d)(1) (pr oviding one-year limitations period from date on which state judgment became fin al for filing habeas corpus petitions) and this court’s case law respecting the filing of such petitions when the state judgment became final prior to the enactm ent of the Antiterrorism and Effective Death Penalty Act of 1996 and tolling of the limitations period while state post-conviction proceedings are pending. See United States v. Simmonds , 111 F.3d 737, 745-46 (10th Cir. 1997); Hoggro v. Boone , 150 F.3d 1223, 1225-26 (10th Cir. 1998). However, the limitations period is not jurisdictional, see Miller v. Marr , 141 F.3d 976, 978 (10th Cir.), cert. denied , 119 S. Ct. 210 (1998). Because the limitations period was not raised, the issue is waived. -2- Petitioner seeks a certificate of appealability in order to appeal the district court’s denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254. 1 Because petitioner has failed to make a “substantia l showing of the denial of a constitutional right,” we deny his application for a certificate of appealability and dismiss the appeal. 28 U.S.C. § 2253(c)(2). Petitioner was convicted in 1985 of various offense s associated with his escape from the New Mexico State Penitentiary. He was granted an out-of-time appeal in which he raised issues unrelated to the f ederal proceedings. The New Mexico Court of Appeals affirmed his convictions an d sentences in all respects.
See State v. Davis , No. 9408 (N.M. Ct. App. Oct. 21, 1986) (unpublish ed). In 1997, he filed state habeas corpus petitions which were dismissed for failure to state a claim for relief. 2-3-

In his habeas petitions he raised four issues: 1. Denial of effective assistance of trial counsel for failure to insist that the trial judge recuse himself. See R. Vol. I, doc 1 at 6; 2. Judicial misconduct by the trial judge in not r ecusing himself from presiding over petitioner’s trial. See id. at 7; 3. Failure to merge or consolidate counts I and V, aggravated assault on a peace officer and false imprisonment. See id. at 9; and 4. Imposition of consecutive rather than concurrent sentences in violation of petitioner’s state and federal constitutional rights. See id. doc. 13 at 6. The magistrate judge entered an order recommending dismissal of the consecutive sentencing issue as procedurally defaul ted, which the district court adopted. See id. doc. 20; doc. 23. This issue is not raised on app eal. The federal public defender was appointed to represent petition er on the remaining issues; however, the memorandum brief filed in district court addressed only the first two issues, which are interrelated and overlapping. As a consequence, only these two issues will be addressed, the remaining deemed waiv ed. Plaintiff claimed that his trial counsel, Michael D . C’deBaca, filed a motion to disqualify the trial judge (Judge Chavez) on the ground that the judge’s courtroom deputy, Clifford Chavez, had been a corre ctions officer at the state facility when petitioner and several others escaped . After petitioner’s arrest, he was questioned about the escape and about whether any corrections officers were involved. Petitioner contends that he was later ca lled to testify at an3 Petitioner avers that instead he received the maxim um possible sentence

following his convictions. -4- administrative hearing regarding the potential dism issal of certain officers. As part of the administrative proceeding, petitioner c laims he was approached by Officer Chavez and his lawyer who told petitioner that if petitioner refused to testify against Officer Chavez, they would ensure that Judge Chavez would be lenient with petitioner’s sentence. 3 Petitioner further claimed that he thought Officer Chavez and Judge Chavez were related. Peti tioner stated that although he had had no intention of testifying against Officer Chavez, he agreed not to do so. According to petitioner, following Officer Chavez’s dismissal as a corrections officer, Judge Chavez hired him as the judge’s court deputy. See R. Vol. I, doc. 34 at 2-4. Petitioner argues that the judge should have recuse d himself because of possible bias and that his trial attorney was const itutionally ineffective by failing to vigorously pursue the motion to recuse, by faili ng to ensure the presence of petitioner at the hearing on the motion, and by fai ling to insist that the hearing be on the record. See id. at 5-11. The state responded, arguing that petitioner had fa iled to allege facts sufficient to overcome the presumption that judges are capable of conducting fair trials and that the alleged facts did not establish an incentive for actual bias. See-5-

Fero v. Kerby , 39 F.3d 1462, 1478 (10th Cir. 1994); Nichols v. Sullivan , 867 F.2d 1250, 1254 (10th Cir. 1989); Del Vecchio v. Illinois Dep’t of Corrections , 31 F.3d 1363, 1372-73 (7th Cir. 1994). The state further n oted that the trial judge had given the basic presumptive sentence for each crime , not the increased aggravated sentences available under N.M. Stat. Ann. § 31-18-1 5.1 and that consecutive sentences were required under N.M. Stat. Ann. § 31- 18-21 because petitioner committed them while an inmate. The state further argued that because there was no showing of actual judicial bias, there was no basis for the claim that a better prepared or argued motion by counsel would have produced a different r esult and that petitioner had failed to demonstrate constitutionally deficient re presentation by his trial attorney. As for the failure to ensure petitioner’s presence at and recording of the hearing, the state asserted that these issues had not been p resented to the state courts and were therefore unexhausted. Finally, the state alleged that it was unfairly prejudiced by petitioner’s twelve-year delay in fil ing the habeas petition because of the intervening death of the trial judge, the ap parent death of trial counsel, and the possibility that the tape of the recusal hearin g was destroyed in a flood. In his second set of proposed findings, the magistr ate judge accepted petitioner’s factual recitations that his attorney had moved to disqualify Judge Chavez because the judge’s courtroom deputy, Cliffo rd Chavez, had been-6-

dismissed as a New Mexico corrections officer (apparently as the result of petitioner’s testimony at an administrative hearing ), that officer Chavez and his attorney had approached petitioner about providing lenience at petitioner’s trial, that petitioner had alleged Officer Chavez was a di stant relative of Judge Chavez, that there was no indication the hearing was record ed or that petitioner was present, that Judge Chavez did not recuse himself, and that petitioner received the maximum sentence. The magistrate judge further rec ited that petitioner did not appeal his conviction, but filed a state habeas corpus petition in 1997, and noted that both Judge Chavez and petitioner’s trial counsel had died. See R. Vol. I, doc.
43 at 1-2. The magistrate judge found that there was no eviden ce of actual judicial bias or even the appearance of bias sufficient to o vercome the presumption of honesty and integrity based on petitioner’s factual assertions. See id. at 2-4. Rather than dismiss the ineffective assistance of c ounsel claims on exhaustion grounds, the magistrate judge addressed them on the merits, ruling that petitioner had failed to show that counsel’s performance was d eficient and that the allegedly deficient performance prejudiced the defense becaus e of the earlier finding that the judicial bias claim was without merit. See id. at 4-5. Finally, the magistrate judge concluded petitioner was not entitled to an e videntiary hearing for failure to make allegations which, if proved, would entitle hi m to relief and, in addition,4 We do not understand the basis for this statement. By petitioner’s own

admissions, supported by the documents in the recor d, the state habeas petitions were filed on April 14, 1997. The New Mexico Supre me Court denied certiorari on May 29, 1997. This can hardly be viewed as an u nreasonable delay in completing the state post-conviction proceedings. -7- that the petition should be dismissed under Rule 9( a) of the Rules Governing § 2254 cases because of prejudice to the state base d on petitioner’ delay in filing the petition. See id. at 5-6. In his objections, petitioner asserted that there w as no evidence that petitioner’s trial attorney was deceased. He furth er contended that the finding that the trial judge’s recusal was unnecessary did not negate trial counsel’s obligation to ensure that petitioner was present atthe hearing and that the hearing was recorded. See R. Vol. I, doc. 44 at 1-2. Petitioner also challe nged the court’s determination the state had shown prejudice because of the delay by arguing that “[a] significant part of the delay occ urred because of the state court’s failure to make a reasonably speedy determination o f Petitioner’s state habeas corpus petition.” 4Id. at 2-3. The district court adopted the magistrate judge’s findings and dismissed the habeas petition. In his brief on appeal, petitioner repeats his claims that the trial judge should have recused himself and that trial counsel was ineffective for failing to guarantee pe titioner’s presence at the hearing and failing to make a record of the hearing

.-8-

At the outset, we note some factual inaccuracies re lied on by the parties and the district court. Included in the documents furn ished as the state court record are an order granting an out-of-time direct crimina l appeal, the docketing statement filed in New Mexico Court of Appeals sett ing forth the issues raised, and the appellate memorandum opinion of October 21, 1986, affirming petitioner’s convictions and sentences. These documents reveal that petitioner did not raise the current issues as part of his dir ect appeal. Also included are the motion to disqualify Judge Ch avez, along with a transcription of the hearing on petitioner’s motion . Petitioner is listed, along with his attorney, in the “Appearances” section. Nevertheless, for purposes of this decision, we will assume he was not present at the hearing. Petitioner’s attorney stated that he was seeking to disqualify Judge Chavez because Clifford Chavez, against whom petitioner ha d made statements, was employed by the court. Judge Chavez then clarifiedthat Clifford Chavez was a deputy with the Sheriff’s office and not an employe e of the court. The judge introduced his bailiff, Scott Scanland, and stated he (the judge) controlled his bailiff, court reporter, and secretary. The judge then stated: You could have recused me, but it is not timely fil ed. And I would not honor this disqualification, because I have no control over Clifford Chavez. And I want it made clear in the r ecord he is not under my supervision. He has never been in my empl oy, never has been under my supervision at any time.-9-

Transcript of July 22, 1985, Hearing on Motion to D isqualify, at 10. Because the record clearly establishes that the hearing on the motion to recuse was recorded, counsel cannot be considered i neffective on this ground. In addition, petitioner has failed to explain how his presence could possibly have affected the outcome of the hearing. See United States v. Gagnon , 470 U.S. 522, 526 (1985) (defendant has due process right to be p resent whenever his presence has a relation, “reasonably substantial, to the ful ness of his opportunity to defend against the charge”) (further quotation omitted). Therefore, assuming he was not present and that the failure to ensure his presence was error, it was harmless. See Rushen v. Spain , 464 U.S. 114, 117 n.2 (1983) (right to be present , as with most constitutional rights, is subject to harmless-error analysis); United States v.
Pearson , 203 F.3d 1243, 1261 (10th Cir. 2000) (recognizing application of Rushen analysis where defendant absent when judge communicated with jurors); Arizona v. Fulminante , 499 U.S. 279, 306-07 (1991) (recognizing wide ran ge of errors, including denial of defendant’s right to be present , to which Court has applied harmless error analysis). Petitioner has also failed to establish that his attorney’s performance fell below an objective standard of reasonableness or th at the alleged deficient performance prejudiced his defense. See Strickland v. Washington , 466 U.S. 668, 687-88 (1984). “To satisfy the second prong, petit ioner must show that there is a-10-

reasonable probability that, but for counsel’s unpr ofessional errors, the result of the proceeding would have been different.” Hickman v. Spears , 160 F.3d 1269, 1273 (10th Cir. 1998) (quotation omitted). Likewise, petitioner’s claim that the trial judge “ could not have been impartial,” see Appellant’s Br. at 10, must also fail. Clifford C havez was not Judge Chavez’s court deputy. Moreover, petitioner has not set forth any factual allegations to demonstrate actual bias. See Nichols , 867 F.2d at 1254 (explaining standard for evaluating allegation of judicial bias amounting to denial of due process as whether judge is actually biased or prej udiced against petitioner). Therefore, “his claim of judicial bias must rest onthere being an appearance of bias sufficient to override the presumption of honesty and integrity.” Fero , 39 F.3d at 1478. “[O]nly a strong, direct interest inthe outcome of a case is sufficient to overcome that presumption of evenhandedness.” Id. at 1479 (quoting Del Vecchio v. Illinois Dep’t of Corrections , 31 F.3d 1363, 1373 (7th Cir. 1994) (en banc). Petitioner claims he “understood that C lifford Chavez was related to Judge Chavez,” see Appellant’s Br. at 10, but he nowhere describes th e nature of this alleged relationship. As with the situation in Fero , in which the trial judge’s son was a law clerk for the prosecution, “[w]e findthat any biasing influence from the circumstances here was too remote and insubstantial to create a presumption of bias.” Fero , 39 F.3d at 1480.-11-

Because petitioner has failed to set forth allegati ons which, if proved, would entitle him to habeas corpus relief, he is no t entitled to an evidentiary hearing. Accordingly, we DENY petitioner’s requestfor a certificate of appealability for failure to make “a substantial sh owing of the denial of a constitutional right” as required by 28 U.S.C. § 22 53(c)(2). The appeal is DISMISSED.

Entered for the Court

Michael R. Murphy Circuit Judge