UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

CECIL BOYETT, 

 Petitioner - Appellant, 

v. 

R.C. SMITH, Warden, 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 challenging his conviction for 

first degree murder, which carried a mandatory sentence of life in prison with eligibility 

for parole after thirty years. This court granted a certificate of appealability (COA) on 

 

 After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would 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 therefore ordered 

submitted without oral argument. This order and judgment is not binding precedent, 

except under the doctrines of law of the case, res judicata, and collateral estoppel. It may 

be cited, however, for its persuasive 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 Court
2 

Mr. Boyett’s claim that his trial counsel was ineffective and denied a COA on all other 

claims. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm. 

I. BACKGROUND 

 Mr. Boyett and Renate Wilder were to be married on February 6, 2004. A few 

days before the wedding, Ms. Wilder left the home she shared with Mr. Boyett without 

telling him where she was going. As it turned out, she was with 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. Shortly after her 

return, Ms. Roach approached the house. When 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 to the hospital, where she died. 

At his trial, “[t]he State successfully argued to the jury that [Mr. Boyett] hated 

[Ms. Roach], was furious with her for having kept Wilder away without telling him about 

it, and shot her that afternoon to put an end to her meddling in the couple’s affairs.” State 

v. Boyett, 185 P.3d 355, 357 (N.M. 2008). Mr. 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 draw 

the gun that he knew she routinely carried. In fear for his life, [Mr. Boyett] raised his 

revolver and shot [Ms. Roach]. [Mr. Boyett] asserted that if he had not shot her, she 

would have fired her gun and fatally wounded him.” Id. Testimony from third parties 

established that a handgun was found under Ms. Roach’s arm after she was shot. 
3 

In addition to arguing self-defense, Mr. Boyett claimed that he was unable to form 

the specific intent necessary to commit first-degree murder because of a traumatic brain 

injury (TBI) he had suffered in 1998, the result of a violent attack by a patient while he 

was working as a nurse. His ineffective-assistance claim, which is the only claim 

relevant to this appeal, arises from that specific-intent theory of defense. 

 Part of Mr. Boyett’s own testimony addressed the TBI and its effects on his 

cognitive abilities. Counsel also had planned to support the specific-intent defense by 

calling Dr. Lori Martinez, a clinical psychologist who had examined Mr. Boyett for 

competency and who had further opined that he was incapable of forming specific intent. 

But the day before she was scheduled to take the stand, Dr. Martinez notified counsel that 

in light of additional records she had received from the prosecution, she would not testify. 

Counsel did not call Dr. Martinez, did not present testimony from 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 refused to instruct the jury on the 

specific-intent defense. 

The jury found Mr. Boyett guilty of first degree murder. The trial 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 denied the opportunity to 

present expert testimony regarding specific intent. That motion, however, did not attach 

any evidence from an expert supporting a lack of capacity to form specific intent. On 
4 

direct appeal, the New Mexico Supreme Court affirmed both the denial of the 

specific-intent instruction and 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 witness to support his 

specific-intent defense. The state district court held an evidentiary hearing, at which an 

expert in forensic psychology, Dr. 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 specific-intent defense. But another experienced criminal 

attorney opined that the self-defense and specific-intent arguments were somewhat 

contradictory, that defense counsel had a strong case for self-defense, and that in 

New Mexico arguing self-defense was much more likely to succeed than arguing a lack 

of capability to form specific intent. 

The state district court denied post-conviction relief. It held that Dr. Cave’s 

“testimony would have been insufficient 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 required an ability to form specific intent at the time of the 

shooting.” R. at 471. Because of potential conflicts between self-defense and the 

specific-intent defense and advantages to self-defense (such as the possibility of a 

complete acquittal), “[r]easonably competent trial counsel could reasonably have decided 

to abandon the diminished capacity claim when his expert changed her opinion and 

refused to testify.” Id. at 472. “Defense counsel’s actions were therefore, consistent with 
5 

a legitimate trial tactic” and did “not fall below an objective standard of reasonableness.” 

Id. The state district court further held that Mr. Boyett “did not 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 this case provided a plausible 

self-defense case, and such defense was a stronger argument than a claim of diminished 

capacity to form specific intent.” Id. The New Mexico Supreme Court 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 ineffective-assistance claim, along with other claims, in 

his § 2254 application to the federal district court. The magistrate judge recommended 

that the district court deny habeas relief, and Mr. Boyett timely objected. The district 

court adopted the recommendation, denied the § 2254 application, and denied a COA. 

As stated, this court subsequently granted a COA on the ineffective-assistance claim. 

II. ANALYSIS 

“In appeals from orders denying a writ of habeas corpus, we review the district 

court’s legal analysis de novo and its factual findings for clear error.” Postelle v. 

Carpenter, 901 F.3d 1202, 1208 (10th Cir. 2018). Because Mr. Boyett proceeds pro se, 

we construe his filings liberally and hold them to a less stringent 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 ineffective-assistance claim, 

the federal courts review the claim under 28 U.S.C. § 2254(d). Cullen v. Pinholster, 

563 U.S. 170, 187 (2011). Section 2254(d) allows habeas relief only when the state 

court’s decision “was contrary to, or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court of the United States” or 

“was based on an unreasonable determination of the facts in light of the evidence 

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). It establishes a 

“highly deferential standard for 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) (citation and internal quotation marks 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 Supreme] Court on a question of 

law or if the state court decides 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-court’s reasoning and result are not contrary to the Court’s 

specific holdings, § 2254(d)(1) prohibits us from granting relief.” Wood v. Carpenter, 

907 F.3d 1279, 1289 (10th Cir. 2018) (Tremane Wood). 
7 

A state court unreasonably applies Supreme Court precedent if it “identifies the 

correct governing legal principle 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 simply because 

that court concludes in its independent judgment that the relevant state-court decision 

applied clearly established federal law erroneously or incorrectly. Rather that application 

must also be unreasonable.” Id. at 411. “[A] state court’s application of federal law is 

only unreasonable if all fairminded jurists would agree the state 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 unreasonably determines the facts if the state court 

plainly misapprehended or misstated the record in making its findings, and the 

misapprehension goes to a material factual issue that is central to petitioner’s claim.” Id.

(brackets and internal quotation marks omitted). “[A] state-court 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 reviewing 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 internal 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 performance was deficient and that counsel’s deficient 

performance prejudiced his defense. Id. at 687. 

“[T]he defendant must show that counsel’s representation fell below an objective 

standard of reasonableness.” Id. at 688. “[T]he performance inquiry must be whether 

counsel’s assistance was reasonable considering all the circumstances.” Id. To satisfy 

the performance prong, “the defendant must overcome the presumption that, under the 

circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 

(internal quotation marks omitted). “Judicial scrutiny of counsel’s performance must be 

highly deferential,” and “a court must indulge a strong presumption that counsel’s 

conduct falls within the wide range of reasonable professional assistance.” Id. A court 

must make every effort to “reconstruct 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 defendant must show “that counsel’s errors were so 

serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 

 1

 Mr. Boyett suggests that this case should be measured under the standards set 

forth in United States v. Cronic, 466 U.S. 648, 659 (1984). This assertion contradicts his 

counsel’s concession at the state-court evidentiary hearing that Strickland controls. And 

his counsel was correct. Because the “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 the prejudice prong by establishing “a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability is a probability sufficient to 

undermine confidence in the outcome.” Id. at 694. “The likelihood 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 § 2254(d) and 

Strickland, our review of the state court’s denial of an ineffective-assistance claim is 

“doubly deferential”; “[w]e take a highly deferential look at counsel’s performance 

through the deferential lens of § 2254(d).” Cullen, 563 U.S. at 190 (citation and internal 

quotation marks omitted). “When § 2254(d) applies, the question is not whether 

counsel’s actions were reasonable,” 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 arguments or theories 

supported . . . the state court’s decision; and then it must ask whether it is possible 

fairminded jurists could disagree that those arguments or theories 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 presented in federal court was 

so lacking in justification that there was an error well understood and comprehended in 

existing law beyond any possibility for fairminded disagreement.” Id. at 103. “[B]ecause 

the Strickland standard is a general standard, a state court has even more latitude to 
10 

reasonably determine that a defendant has not satisfied that standard.” 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 reasoning nor its result was 

contrary to or an unreasonable application of Strickland. As required by Strickland, the 

state court made an effort to reconstruct the circumstances, affording deference to 

counsel. It concluded that in light of Mr. Boyett’s strong case for self-defense, it was not 

deficient performance for trial counsel effectively to abandon the specific-intent defense 

when Dr. Martinez abruptly declined to testify. It further concluded that Mr. Boyett had 

not suffered prejudice. At a minimum, these are reasonable arguments that counsel 

satisfied Strickland’s deferential standards. See Harrington, 562 U.S. at 105. In Knowles 

v. Mirzayance, for example, the Supreme Court refused to disturb a state court’s rejection 

of an ineffective-assistance claim arising out of a recommendation that a client abandon a 

weak position after witnesses refused to testify: 

It was not unreasonable for the state court to conclude that his defense 

counsel’s performance was not deficient when he counseled Mirzayance to 

abandon a claim that stood almost no chance of success. . . . [T]his court 

has never required defense counsel to pursue every claim or defense, 

regardless of its merit, viability, or realistic chance of success. 

556 U.S. at 123.2

 And even if the state court erred in its conclusions, that does not make 

its decision unreasonable. See Williams, 529 U.S. at 411. In sum, the state court’s ruling 

 2

 Mr. Boyett suggests that counsel was ineffective and violated his right to 

compulsive process in failing to subpoena Dr. Martinez to testify. It is not clear whether 

Mr. Boyett raised this aspect of his ineffective-assistance argument before the state 

(continued) 
11 

is not “so lacking in justification that there was an error well understood and 

comprehended in existing law beyond any possibility for fairminded disagreement.” 

Harrington, 562 U.S. at 103. 

Finally, there is no indication that the state court’s decision “was based on an 

unreasonable determination of the facts in light of the evidence presented in the State 

court proceeding,” so as to satisfy § 2254(d)(2). Even if we were to disagree with a 

state-court finding, “a state-court factual determination is not unreasonable merely 

because the federal habeas court would have reached a different conclusion in the first 

instance.” Holly Wood, 558 U.S. at 301. Again, at a minimum, reasonable minds might

disagree about the state court’s findings, meaning that Mr. Boyett is not entitled to relief 

under § 2254(d)(2). See id. 

III. CONCLUSION 

 Mr. Boyett’s motion to proceed without 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 Supreme Court has stated, “[c]ompetence does not require 

an attorney to browbeat a reluctant witness into testifying.” Knowles, 556 U.S. at 125. 

Moreover, Dr. Martinez’s withdrawal suggests that her testimony might have damaged 

rather than aided Mr. Boyett’s case.