* This order and judgment is not binding precedent, e xcept under the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 14 1998 

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

JIMMY D. WIGGINS,

Petitioner-Appellant,

v. DAN MORIARTY, Warden at TCDF; ATTORNEY GENERAL STATE OF NEW MEXICO,

Respondents-Appellees. No. 97-2208 (D.C. No. CIV-96-684-BB) (D.N.M.)

ORDER AND JUDGMENT *

Before TACHA , LOGAN , and LUCERO , Circuit Judges.

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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

This matter comes before us on Petitioner-AppellantJimmy D. Wiggins’s application for a certificate of appealability (COA ). We deny COA and dismiss his appeal. The district court entered its order dismissing app ellant’s 28 U.S.C. § 2254 habeas petition on May 19, 1997. Appellant deposit ed his notice of appeal in the prison mail system on June 17, 1997. Appellant’s n otice of appeal therefore was timely, see Fed. R. App. P. 4(c), and we have jurisdiction. Appellant raises here the same four issues he raise d in the district court: (1) whether his guilty plea was involuntary; (2) wh ether he was denied effective assistance in connection with his guilty plea; (3) whether his sentence constitutes cruel and unusual punishment; and (4) whether the s entencing judge was improperly influenced by newspaper articles critica l of local judges’ sentencing practices. The magistrate judge assigned to this c ase found that appellant had failed to exhaust his first and fourth issues. He concluded that appellant had brought a “mixed petition” containing both exhauste d and unexhausted claims, which should be dismissed. See generallyRose v. Lundy , 455 U.S. 509, 522 (1982). The district court adopted the reasoning o f the magistrate judge, and dismissed appellant’s petition with prejudice.-3-

“Exhaustion presents a mixed question of law and fa ct. The district court’s ultimate conclusion that a claim is exhausted is su bject to de novo review.” Fox v. Kelso , 911 F.2d 563, 568 (11th Cir. 1990). Appellant entered a guilty plea to the crime of arm ed robbery, and received the maximum statutory sentence of nine years follow ed by two years parole. In his first issue, he claims that his plea was involu ntary because his attorney led him to believe he would be sentenced to time served plus probation. Appellant did not raise this claim in either his di rect state appeal or in his state habeas corpus petition. The state argues that appellant has procedurally defaulted the claim, see Dulin v. Cook , 957 F.2d 758, 759 (10th Cir. 1992), because the New Mexico courts would refuse to consi der it on a second habeas petition, see Jackson v. Shanks , ___ F.3d ___, No. 97-2063, 1998 WL 220089, at *3 (10th Cir. May 5, 1998). The district court determined that the claim was not yet exhausted, because appellant could still ra ise it in a second habeas petition by asserting fundamental error. See State v. Gillihan , 524 P.2d 1335, 1336 (N.M. 1974). We agree with the state that appellant procedurally defaulted this claim by failing to present it in either his direct appeal o r his state habeas petition. Claims of fundamental error are considered only to avoid amiscarriage of justice or a result which shocks the judicial conscience. See State v. Lucero , 863 P.2d 1071,-4-

1074 (N.M. 1993) (discussing fundamental error test ). The New Mexico Court of Appeals already has determined, in connection wi th appellant’s ineffective assistance of counsel claim, that appellant (1) had a prior history of criminal activity; (2) was informed by the trial court and u nderstood that a range of sentences were possible, including the maximum sent ence; and (3) was sentenced in accordance with the New Mexico statutes. Given these findings, which were undisturbed on state certiorari review, we conclude the New Mexico courts would not consider appellant’s new issue on the basis of fundamental error. The magistrate judge opined that appellant’s secondand third issues were procedurally barred. As to the second issue, we di sagree. Appellant raised his ineffective assistance of counsel argument on direc t appeal. After it was rejected by the New Mexico Court of Appeals, he timely fileda petition for writ of certiorari to the New Mexico Supreme Court. A habe as petitioner who has pursued an issue on direct appeal to a state’s high est court need not present it again on state collateral review. See Castille v. Peoples , 489 U.S. 346, 350 (1989). This issue, then, is exhausted and is not procedurally barred. We will consider it on the merits. “Whether a defendant received effective assistance of counsel is a mixed question of law and fact that we review de novo.” United States v. Prows , 118 F.3d 686, 691 (10th Cir. 1997). To prevail on sucha claim, appellant must show-5-

that his counsel’s representation fell below an obj ective standard of reasonableness, and that counsel’s deficient performance prejudiced his defense.
See id. Appellant has failed to show that his counsel’s per formance in connection with his guilty plea fell below an objective standa rd of reasonableness. Appellant has failed to rebut the state district court’s find ings as to this claim, which are presumed correct. See 28 U.S.C. § 2254(e)(1). The state district court found that appellant was informed of the range of possible sentences at his plea hearing, that he acknowledged that he understood these possibilit ies, and that he told the court that his plea was voluntary and not the result of f orce, threats, or promises. In his motion to withdraw his plea, appellant conceded that his counsel had made known to him the maximum penalties attached to the offens e to which he was entering his guilty plea. Finally, while appellant has pres ented correspondence from his counsel indicating that counsel believed it was lik ely that he would receive time served plus probation, he has failed to show that c ounsel affirmatively misled him about the maximum sentence, or made any promises ab out the sentence he would receive. See Thomas v. Kerby , 44 F.3d 884, 886 (10th Cir. 1995) (holding that counsel’s estimate of sentence substantially less than that imposed, absent misrepresentation or affirmative promise by counsel , does not invalidate plea).-6-

Appellant’s third issue is procedurally barred. He presented it in his state habeas corpus petition. After the petition was den ied, he raised the issue in his certiorari petition to the New Mexico Supreme Court . That court, however, rejected his petition as untimely. Thus, there exi sts an adequate and independent state ground for denying relief as to this issue. See Ballinger v. Kerby , 3 F.3d 1371, 1374 (10th Cir. 1993). Finally, the district court determined that appella nt had failed to exhaust his fourth issue, which concerns the improper influence of newspaper articles on the sentencing process. Appellant raised the issue on direct appeal, but abandoned it on certiorari, and did not renew it in his subseque nt habeas petition. The time to seek review through certiorari has now expired. Se e N.M. R. App. P. 12-502(B). Moreover, this is not a claim which the New Mexico courts would consider on a successive habeas petition. See Jackson , 1998 WL 220089, at *3; Gillihan , 524 P.2d at 1336. This issue is procedurally barre d. See Coleman v. Thompson , 501 U.S. 722, 735 n.1 (1991). Appellant has failed to make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Accordingly, we DENY his-7-

application for a certificate of appealability, and DISMISS this appeal. The mandate shall issue forthwith.

Entered for the Court

Carlos F. Lucero Circuit Judge