UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ CECIL BOYETT, Petitioner - Appellant,

v. R.C. SMITH, Warde n, Lea County Correctional Facility; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO, Respondents - Appellees. No. 18-2107 (D.C. No. 2:17-CV-00374-KG-CG) (D. N.M.)

________________ _________________ ORDER AND JUDGMENT 

________________ _________________ Before BACHARACH , PHILLIPS , and EID , Circuit Judges.

________________ _________________ Cecil Boyett, a New Mexico prisoner proceeding pro se, appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas application chall enging his conviction for first degree murder, which carried a mandatory sentence of life in prison with eligibility for parole after thirty years. T his court granted a certificat e of appealability (COA) on

 After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument wo uld not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t herefore ordered submitted without oral argument . This order and judgment is no t binding precedent, except under the doctrines of law of the case, res judicata, an d collateral estoppel. It may be cited, however, for its persuas ive value consistent with Fed . R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### January 9, 2019
Elisabeth A. Shumaker Clerk of Court2 Mr. Boyett’s claim that his trial counsel was ineffective and d enied a COA on all other claims. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 22 53, we affirm.
I. BACKGROUND Mr. Boyett and Renate Wilder wer e to be married on February 6, 2004. A few days before the wedding, Ms. Wild er left the home she shared wi th Mr. Boyett without telling him where she was going. As it turned out, she was wit h her friend and former lover, Deborah Roach. Mr. Boyett suspected Ms. Wilder was with Ms. Roach and tried to locate them but was unsuccessful. Ms. Wilder came home during the afternoon of February 5. Short ly after her return, Ms. Roach app roached the house. Whe n Ms. Roach arrived , Mr. Boyett grabbed a handgun, opened the front door, and shouted at her to leave the property. He then shot her in the head. She was taken t o the hospital, where she died

. At his trial, “[t]he State succe ssfully argued to the jury that [Mr. Boyett] hated [Ms. Roach], was furi ous with her for having kept Wilder away w ithout telling him about it, and shot her that afternoon to put an end to her meddling i n the couple’s affairs.” State v. Boyett , 185 P.3d 355, 357 (N.M. 2008). M r. Boyett, however, “claimed that [Ms. Roach] came to the house that day intent on killing him to prevent his impending marriage to Wilder.” Id. “[I]n the process of trying to run her off, he observed her d raw the gun that he knew she rou tinely carried. In fear for his li fe, [Mr. Boyett] raised his revolver and shot [Ms. Roach] . [Mr. Boyett] asserted that if h e had not shot her, she would have fired her gun a nd fatally wounded him.” Id. Testimony from third parties established that a handgun was fo und under Ms. Roach’s arm afte r she was shot.3 In addition to arguing self-defen se, Mr. Boyett claimed that he was unable to form the specific intent necessary to commit first-degree murder bec ause of a traumatic brain injury (TBI) he had suffered i n 1998, the result of a violent a ttack by a patient while he was working as a nurse. His ine ffective-assistance claim, whic h is the only claim relevant to this appeal, arises from that specific-intent theor y of defense. Part of Mr. Boyett’s own testimony addressed the TBI and its e ffects on his cognitive abilities. Counsel also ha d planned to support the s pecific-intent defense by calling Dr. Lori Martinez, a clini cal psychologist who had exam ined Mr. Boyett for competency and who had further opi ned that he was incapable of forming specific intent. But the day before she was sch eduled to take the stand, Dr. Mar tinez notified counsel that in light of additional records sh e had received from the prosec ution, she would not testify. Counsel did not call Dr. Martinez , did not present testimony fr om any other expert, and did not request either a continuance to obtain expert testimony or a mistrial. As a result of the failure to provide expert testimony, the trial court ref used to instruct the jury on the specific-intent defense. The jury found Mr. Boyett guilty of first degree murder. The t rial court subsequently denied Mr. Boyett’s motion for a new trial, which alleged that the defense had been taken by surprise by Dr. Martinez’s withdrawal and den ied the opportunity to present expert testimony regard ing specific intent. That motio n, however, did not attach any evidence from an expert suppo rting a lack of capacity to fo rm specific intent. On4 direct appeal, the New Mexico Supr eme Court affirmed both the d enial of the specific-intent instruction an d the denial of a new trial. Id. at 362, 363. Mr. Boyett then pursued state post-conviction relief, arguing, among other issues, that his counsel was ineffective in failing to call an expert w itness to support his specific-intent defense. The sta te district court held an evid entiary hearing, at which an expert in forensic psychology, D r. Susan Cave, testified that, if called, she would have opined that Mr. Boyett lacked the capacity to form the specific intent to commit murder. An experienced criminal attorney opined that Mr. Boyett’s trial counsel performed deficiently with regard to the sp ecific-intent defense. But an other experienced criminal attorney opined that the self-d efense and specific-intent argum ents were somewhat contradictory, that defense counsel had a strong case for self- defense, and that in New Mexico arguing self-defense w as much more likely to succeed than arguing a lack of capability to formspecific intent. The state district court denied post-conviction relief. It hel d that Dr. Cave’s “testimony would have been insu fficient to permit the requisite instruction of lack of or inability to form specific intent , because the evidence proved that [Mr. Boyett] engaged in other activities that require d an ability to form specific i ntent at the time of the shooting.” R. at 471. Because o f potential conflicts between self-defense and the specific-intent defense and adva ntages to self-defense (such as the possibility of a complete acquittal), “[r]easonabl y competent trial counsel coul d reasonably have decided to abandon the diminished capaci ty claim when his expert change d her opinion and refused to testify.” Id. at 472. “Defense counsel’s actions were therefore, consistent with5 a legitimate trial tactic” and did “not fall below an objective standard of reasonableness.” Id. The state district court furt her held that Mr. Boyett “did no t show a reasonable probability that but for claimed errors of counsel, the result of the proceedings would have been different.” Id. at 473. “The defense in thi s case provided a plausible self-defense case, and such defen se was a stronger argument tha n a claim of diminished capacity to form specific intent.” Id. The New Mexico Supreme C ourt denied a writ of certiorari, making the state district court’s decision the last reasoned decision of the state

courts. Mr. Boyett then raised his ineffe ctive-assistance claim, along with other claims, in his § 2254 application to the fe deral district court. The magi strate judge recommended that the district court deny ha beas relief, and Mr. Boyett time ly objected. The district court adopted the recommendation , denied the § 2254 application , and denied a COA. As stated, this court subsequen tly granted a COA on the ineffec tive-assistance claim.
II. ANALYSIS “In appeals from orders denying a writ of habeas corpus, we rev iew the district court’s legal analysis de novo and its factual findings for cle ar error.” Postelle v. Carpenter , 901 F.3d 1202, 1208 (10th Ci r. 2018). Because Mr. Boyett pro ceeds pro se, we construe his filings liberally and hold them to a less strin gent standard than filings drafted by lawyers. Garrett v. Selby Connor Maddux & Janer , 425 F.3d 836, 840 (10th Cir. 2005).6 I. Legal Standards A. Habeas Standards Because the state courts addressed the merits of the ineffecti ve-assistance claim, the federal courts review the cla im under 28 U.S.C. § 2254(d). Cullen v. Pinholster , 563 U.S. 170, 187 (2011). Sectio n 2254(d) allows habeas relief only when the state court’s decision “was contrary t o, or involved an unreasonable application of, clearly established Federal law, as dete rmined by the Supreme Court of the United States” or “was based on an unreasonable de termination of the facts in lig ht of the evidence presented in the State court proc eeding.” 28 U.S.C. § 2254(d)( 1), (2). It establishes a “highly deferential standard fo r evaluating state-court rulings , which demands that state-court decisions be given the benefit of the doubt.” Woodford v. Visciotti , 537 U.S. 19, 24 (2002) (per curiam) (citatio n and internal quotation mar ks omitted). 1. Section 2254(d )(1) Standards A state-court decision is contrary to Supreme Court precedent “ if the state court arrives at a conclusion opposite to that reached by [the Suprem e] Court on a question of law or if the state court decide s a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams v. Taylor , 529 U.S. 362, 413 (2000). “But a state court need not cite the Court’s cases or, for that matter, even be aware of them. So long as the state-cour t’s reasoning and result are no t contrary to the Court’s specific holdings, § 2254(d)(1) prohibits us from granting reli ef.” Wood v. Carpenter , 907 F.3d 1279, 12 89 (10th Cir. 2018) ( Tremane Wood ).7 A state court unreasonably applie s Supreme Court precedent if i t “identifies the correct governing legal principl e from [the] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Williams , 529 U.S. at 413. “[A]n unreasonable application of federal law is different from an incorrect application of federal law.” Id. at 410. “[A] federal habeas court may not issue the writ simp ly because that court concludes in its indepe ndent judgment that the relev ant state-court decision applied clearly established fede ral law erroneously or incorrec tly. Rather that application must also be unreasonable.” Id. at 411. “[A] state court’s application of federal law is only unreasonable if all fairminde d jurists would agree the sta te court decision was incorrect.” Tremane Wood , 907 F.3d at 1289 (internal quotation marks omitted). 2. Section 2254(d)(2) Standards “[A] state court-decision unreas onably determines the facts if the state court plainly misapprehended or misstated the record in making its fi ndings, and the misapprehension goes to a materia l factual issue that is centra l to petitioner’s claim.” Id. (brackets and internal quotatio n marks omitted). “[A] state-co urt factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Wood v. Allen , 558 U.S. 290, 301 (2010) ( Holly Wood ). “[E]ven if reasonable minds review ing the record might disagree about the finding in question, on habeas review that does not suffice to supersede the trial court’s determination.” Id. (brackets, ellipsis, and intern al quotation marks omitted).8 B. Ineffective-Assistance Standards For this ineffective-assistance claim, the clearly established federal law is Strickland v. Washington , 466 U.S. 668 (1984). 1 Under Strickland , a defendant must demonstrate both that counsel’s p erformance was deficient and t hat counsel’s deficient performance prejudiced his defense. Id. at 687. “[T]he defendant must show that counsel’s representation fell b elow an objective standard of reasonableness.” Id. at 688. “[T]he performance inquiry must be whether counsel’s assistance was reasonabl e considering all the circums tances.” Id. To satisfy the performance prong, “the defend ant must overcome the presump tion that, under the circumstances, the challenged acti on might be considered sound trial strategy.” Id. at 689 (internal quotation marks omitte d). “Judicial scrutiny of coun sel’s performance must be highly deferential,” and “a cour t must indulge a strong presump tion that counsel’s conduct falls within the wide ra nge of reasonable professional assistance.” Id. A court must make every effort to “recons truct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. Under the prejudice prong, the d efendant must show “that counse l’s errors were so serious as to deprive the defen dant of a fair trial, a trial wh ose result is reliable.” Id. at

1 Mr. Boyett suggests that this case should be measured under th e standards set forth in United States v. Cronic , 466 U.S. 648, 659 (1984). This assertion contradicts his counsel’s concession at the stat e-court evidentiary hearing tha t Strickland controls. And his counsel was correct. Because t he “argument is not that his counsel failed to oppose the prosecution throughout the . . . proceeding as a whole, but that his counsel failed to do so at specific points,” the proper precedent is Strickland rather than Cronic

. Bell v. Cone , 535 U.S. 685, 697-98 (2002).9 687. The defendant satisfies t he prejudice pron g by establishi ng “a reasonable probability that, but for counsel’ s unprofessional errors, the result of the proceeding would have been different. A re asonable probability is a proba bility sufficient to undermine confidence in the outcome.” Id. at 694. “The likeliho od of a different result must be substantial, not just conceivable.” Harrington v. Richter , 562 U.S. 86, 112 (2011).
II. Discussion In light of the deferential standards applicable under both § 2 254(d) and Strickland , our review of the state court’s denial of an ineffective-assi stance claim is “doubly deferential”; “[w]e take a highly deferential look at c ounsel’s performance through the deferentia l lens of § 2254(d).” Cullen , 563 U.S. at 190 (citation and internal quotation marks omitted). “When § 2254(d) applies, the questio n is not whether counsel’s actions were reasonabl e,” but instead, it is “whether there is any reasonable argument that counsel satisfied Strickland ’s deferential standard.” Harrington , 562 U.S. at 105. “Under § 2254(d), a habeas court must determine what a rguments or theories supported . . . the state court’s decision; and then it must as k whether it is possible fairminded jurists could disagr ee that those arguments or theor ies are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at 102. “[A] state prisoner must show that the state court’ s ruling on the claim being pres ented in federal court was so lacking in justification that there was an error well unders tood and comprehended in existing law beyond any possib ility for fairminded disagreement .” Id. at 103. “[B]ecause the Strickland standard is a general standard , a state court has even more la titude to10 reasonably determine that a defen dant has not satisfied that st andard.” Knowles v. Mirzayance , 556 U.S. 111, 123 (2009). Although the state court did not cite Strickland , it identified and analyzed the applicable factors (performance and prejudice). Neither its re asoning nor its result was contrary to or an unreasonable application of Strickland . As required by Strickland , the state court made an effort to re construct the circumstances, af fording deference to counsel. It concluded that in light of Mr. Boyett’s strong cas e for self-defense, it was not deficient performance for trial c ounsel effectively to abandon the specific-intent defense when Dr. Martinez abru ptly declined to testify. It further con cluded that Mr. Boyett had not suffered prejudice. At a mi nimum, these are reasonable arg uments that counsel satisfied Strickland ’s deferential standards. See Harrington , 562 U.S. at 105. In Knowles v. Mirzayance , for example, the Supreme Court re fused to disturb a state cou rt’s rejection of an ineffective-assistance cl aim arising out of a recommendat ion that a client abandon a weak position after witnesses refused to testify: It was not unreasonable for the s tate court to conclude that hi s defense counsel’s performance was not deficient when he counseled Mirza yance to abandon a claim that stood a lmost no chance of success. . . . [T]his court has never required defense counse l to pursue every claim or def ense, regardless of its merit, viab ility, or realistic chance of succ ess. 556 U.S. at 123. 2 And even if the state court erre d in its conclusions, that do es not make its decision unreasonable. See Williams , 529 U.S. at 411. In sum, t he state court’s ruling

2 Mr. Boyett suggests that counsel was ineffective and violated his right to compulsive process in failing to s ubpoena Dr. Martinez to testi fy. It is not clear whether Mr. Boyett raised this aspect o f his ineffective-assistance arg ument before the state (continued)11 is not “so lacking in justifica tion that there was an error wel l understood and comprehended in existing law be yond any possi bility for fairmin ded disagreement.” Harrington , 562 U.S. at 103. Finally, there is no indication th at the state court’s decision “was based on an unreasonable determination of the facts in light of the evidenc e presented in the State court proceeding,” so as to sa tisfy § 2254(d)(2). Even if we w ere to disagree with a state-court finding, “a state-cour t factual determination is no t unreasonable merely because the federal habeas court would have reach ed a different conclusion in the first instance.” Holly Wood , 558 U.S. at 301. Again, at a mi nimum, reasonabl e minds might disagree about the state court’ s findings, meaning that Mr. Boy ett is not entitled to relief under § 2254(d)(2). See id. III. CONCLUSION Mr. Boyett’s motion to proceed w ithout prepayment of costs and fees is granted. The district court’s judgment is affirmed.

Entered for the Court

Allison H. Eid Circuit Judge

courts. But in any event, the S upreme Court has stated, “[c]om petence does not require an attorney to browbeat a reluct ant witness into testifying.” Knowles , 556 U.S. at 125. Moreover, Dr. Martinez’s withdraw al suggests that her testimony might have damaged rather than aided Mr. Boyett’s case.