* This order and judgment is not binding precedent, e xcept under the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

** Honorable William F. Downes, District Judge, UnitedStates District Court for the District of Wyoming, sitting by designation

. 

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

### FEB 11 1997 

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

WILLIAM RAY CAWLEY,

Petitioner-Appellant,

v. DONALD A. DORSEY, Warden; NEW MEXICO ATTORNEY GENERAL, Respondents-Appellees. No. 96-2016 (D.C. No. CIV 93-1263) (D.N.M.)

ORDER AND JUDGMENT *
Before EBEL and HENRY, Circuit Judges, and DOWNES, ** District Judge.
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) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.1 On April 24, 1996, the President signed into law th e Antiterrorism and

Effective Death Penalty Act, Pub. L. No. 104-132, 1 10 Stat. 1214, which includes significant habeas corpus amendments. No effective date is specified for these habeas corpus amendments except for the special death penalty litigation procedures, which do not apply to this case. Petit ioner filed his § 2254 petition in the federal district court on October 28, 1993. Th e district court adopted the magistrate judge’s proposed findings and recommende d disposition and denied the petition on December 21, 1995. Petitioner file d his notice of appeal on January 18, 1996, and the district court entered an order granting petitioner a certificate of probable cause on January 25, 1996. All of these events occurred well before the enactment of the new law. Under th ese circumstances, we conclude that the new law does not apply to this ca se. See Edens v. Hannigan , 87 F.3d 1109, 1112 n.1 (10th Cir. 1996). -2- Petitioner William Ray Cawley, a New Mexico state p risoner, appeals from the district court’s denial of his habeas petition under 28 U.S.C. § 2254. 1 We have jurisdiction under 28 U.S.C. § 2253, and affirm for substantially the same reasons as those set forth in the magistrate judge’ s December 1, 1995 order, and adopted by the district court. Petitioner contends: (1) the New Mexico extraditio n statutes, N.M. Stat. Ann. §§ 31-4-24 and 31-4-25, require the filing of a criminal complaint before the criminal statute of limitations may be tolled; (2) he was denied due process and equal protection of the law by his conviction on th e count I charge, where the criminal statute of limitations had run on the alle ged act before a complaint was filed by the State of New Mexico; (3) the applicati on of his uncounseled prior convictions in the State of Texas to enhance his se ntence on the conviction in-3-

New Mexico denied him due process and equal protect ion of the law; and (4) he was denied effective assistance of trial and appell ate counsel. The act charged in count I of the criminal informat ion was committed in May 1968. Petitioner was charged by criminal information on November 1, 1988. The jury found that the then-applicable ten-year st atute of limitations was tolled pursuant to N.M. Stat. Ann. § 40A-1-9(A) (now codif ied as N.M. Stat. Ann. § 30- 1-9(A)), which provides that the limitations periodmay be tolled if a criminal defendant "shall conceal himself, or shall flee or go out of the state." The jury deemed the limitations period tolled from May 1968 through February 1979 because petitioner left the State of New Mexico and resided elsewhere during that time. Petitioner argues for the first time on appe al that the New Mexico extradition statutes require the filing of a crimin al complaint before the criminal statute of limitations may be tolled. We ordinaril y do not consider arguments not presented to the district court. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). This argument is theref ore deemed waived. Petitioner’s argument that he was denied due proces s or equal protection by his conviction on the count I charge because the st atute of limitations had run before a criminal complaint was filed is unpersuasi ve. Here, as in the district court, petitioner relies on civil cases which the m agistrate judge appropriately rejected as inapplicable to criminal cases. In add ition, the magistrate judge-4-

correctly held that the New Mexico long-arm statute , by its own terms, does not apply to the criminal charge in count I of the info rmation, see N.M. Stat. Ann. § 38-1-16(C), and so did not suspend the tolling pr ovisions of N.M. Stat. Ann. § 40A-1-9(A) (now N.M. Stat. Ann. § 30-1-9(A)). Fu rther, count I of the information sufficiently informed petitioner of the offense charged. As the magistrate judge pointed out, the state dist rict court’s implicit finding that petitioner was represented by counsel in connection with his prior felony convictions in Texas is entitled to a presumption of correctness under 28 U.S.C. § 2254(d), unless one of the seven factor s listed in the statute is present, or we decide that the state court findings are not fairly supported by the record. See Case v. Mondragon , 887 F.2d 1388, 1392 (10th Cir. 1989). Petitioner does not dispute that the record include s forms that he signed which state that he was counseled during those proceeding s. See Appellant’s App. at 17, 19, 21. Rather, he argues that he signed these for ms merely because he was instructed to, and not because he truly had been re presented by counsel. See Appellant’s Opening Br. at 13. For the first time in his reply brief, petitioner asserts he gave information to the state and federa l district courts tending to show he was not counseled during proceedings on his prio r convictions. He does not indicate what this information is, however, or wher e it can be found in the state court record or his appendix on appeal. We therefo re agree with the magistrate-5-

judge that because petitioner has not pointed to any facts tending to show that he was not represented by counsel on his prior convict ions, the state court’s implicit finding that he was counseled must stand. Petition er is not entitled to a hearing on this issue. Petitioner’s ineffective assistance claim is also w ithout merit. Under Strickland v. Washington , 466 U.S. 668, 687-88, 694 (1984), petitioner must show that his attorney’s representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding s would have been different. Because we reject petitioner’s claims of error, pet itioner cannot show that his trial and appellate attorneys’ performance fell below an objective standard of reasonableness by not presenting these claims or bynot presenting them differently. The judgment of the United States District Court fo r the District of New Mexico is AFFIRMED.

Entered for the Court

Robert H. Henry Circuit Judge