* This order and judgment is not binding precedent, except under the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

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

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

### DEC 13 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT ANAYA, Petitioner - Appellant, vs. TIM LEMASTER, Warden, New Mexico State Penitentiary; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents - Appellees. No. 99-2232 (D.C. No. CIV-97-829-M/DJS)

(D.N.M.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **
Mr. Anaya, an inmate appearing pro se and in forma pauperis, seeks to appeal from the denial of his habeas petition, 28 U .S.C. § 2254. Mr. Anaya was convicted of first-degree murder and aggravated bur glary; he was sentenced to life imprisonment plus a consecutive term of nine y ears, respectively. In his- 2 -

habeas petition, he claimed ineffective assistance of counsel and error in the admission of prior bad acts evidence. Upon recomme ndation of the magistrate judge, the district court dismissed the petition wi th prejudice. On appeal, he contends that (1) counsel should have been appointe d, and he should have been afforded discovery, expansion of the record, and he arings, and (2) application of current habeas law, specifically the AEDPA, constitutes a suspension of the writ. Neither of these contentions has merit. The magist rate judge did not abuse his discretion in denying the appointment of counse l, discovery and an evidentiary hearing. See Swazo v. Wyoming Dep’t of Corrections , 23 F.3d 332, 333 (10th Cir. 1994) (appointment of counsel in § 2254 procee ding is discretionary). The magistrate judge ordered the state to answer; the m atters raised in the habeas petition were easily resolved on the basis of the r ecord; no evidentiary hearing was required. See R. 8(a), Rules Governing § 2254 Cases. Essentially, Mr. Anaya claims that trial counsel wa s ineffective for failing to (1) develop a diminished capacity defense based upon chemical impairment, and (2) request an instruction on diminished capaci ty that would support a defense that Mr. Anaya was incapable of forming the required specific intent. The defense did present some evidence of diminishedcapacity, but the New Mexico Supreme Court determined that defense counse l made a tactical choice not to pursue such an instruction because the evide nce was weak and the defense- 3 -

expert concluded that Mr. Anaya’s intoxication did not affect his judgment. This resolution of the ineffective assistance of counsel claim is in accord with federal law and based upon a reasonable determination of th e facts of the state court proceeding; accordingly, habeas relief is not warranted. See 28 U.S.C. § 2254(d)(1) & (2); Smallwood v. Gibson , 191 F.3d 1257, 1264-65 (10th Cir. 1999). As to the claim concerning the prior bad acts evide nce, we do not review state court evidentiary rulings on collateral attac k unless they rendered the trial fundamentally unfair. See Duvall v. Reynolds , 139 F.3d 768, 787 (10th Cir. 1998). The New Mexico Supreme Court found no errorin the admission of Mr. Anaya’s threats against the victim; given this pred icate, no relief is warranted on this claim. Finally, Mr. Anaya’s argument that AEDPA constitute s a suspension of the writ given the standards in § 2254(d) is rejected. See Mueller v. Angelone , 181 F.3d 557, 572-73 (4th Cir. 1999); Green v. French , 143 F.3d 865, 875-76 (4th Cir. 1998), cert. denied , 119 S.Ct. 844 (1999). We have considered the rem aining claims in Mr. Anaya’s submissions and find them without merit.

We DENY a certificate of appealability and DISMISS the appeal.- 4 - Entered for the Court
Paul J. Kelly, Jr. Circuit Judge