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

### JAN 8 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

RAYMOND LUCERO,

Petitioner-Appellant,

v. DARELD L. KERBY, ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents-Appellees. No. 95-2263

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-90-911-SC)

Roger A. Finzel, Assistant Federal Public Defender, Albuquerque, New Mexico, for Appellant. Patricia A. Gandert, Assistant Attorney General (To m Udall, Attorney General, with her on the brief), Attorney General’s Office f or the State of New Mexico, Santa Fe, New Mexico, for Appellee.

Before LUCERO, LOGAN, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.2

Petitioner Raymond Lucero appeals the district court’s dismissal of his federal habeas corpus petition, brought pursuant to 28 U.S.C. § 2254, following his convictions and sentencing in state court for a ggravated burglary and criminal sexual penetration charges. On appeal from the dis missal of his habeas petition, petitioner asserts (1) the state trial court violat ed his Sixth Amendment right to trial by an impartial jury when it denied his motio n to dismiss the jury venire or conduct individual, sequestered voir dire after it was learned that one of the jury venire was the brother of one of the victims of the charged offenses; (2) he was denied his Sixth Amendment right to compulsory proc ess for obtaining witnesses when the trial court denied his motion for a contin uance to secure a witness essential to his misidentification defense; (3) he was denied his constitutional right to a full and fair hearing on the issue of th e voluntariness of his inculpatory statements, and the trial court’s admission of his statements violated his Fifth Amendment rights; (4) the evidence introduced at tr ial was insufficient to support his convictions; (5) the trial court violated his d ue process right to a fair trial when it permitted the joinder of two separate crimi nal informations alleging dissimilar facts surrounding the charged offenses; (6) his consecutive sentences for the criminal sexual penetration and aggravated burglary convictions violated his right against double jeopardy; and (7) he was d enied his Sixth Amendment1 Petitioner has moved this court for issuance of a c ertificate of probable

cause to appeal. Because he filed his habeas corpu s petition before the April 24, 1996 effective date of the Antiterrorism and Effect ive Death Penalty Act of 1996 (AEDPA), he does not need a certificate of appealab ility to proceed. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). Theref ore, pursuant to the requirements of 28 U.S.C. § 2253 ineffect at the time petitioner filed in the district court, we grant a certificate of probable cause and proceed to the merits of petitioner’s appeal. 3 right to effective assistance of counsel due to his trial attorney’s deficient performance. This court has jurisdiction pursuant to 28 U.S.C. § 2253. In reviewing the denial of petitioner’s habeas corpus petition, we review the district court’s conclusions of law de novo. See Matthews v. Price , 83 F.3d 328, 331 (10th Cir. 1996). We reverse the district court’s ruling on petitioner’s double jeopardy claim as to one of petitioner’s conviction s, but affirm on the remaining issues. 1
FACTS In 1986, petitioner was charged with four counts of aggravated burglary, three counts of second-degree criminal sexual penet ration (CSP II), one count of attempted CSP II, and one count of third-degree cri minal sexual penetration (CSP III). The charges arose from four rapes and one attempted rape that occurred in Clovis, New Mexico, between December 1985 and July 1986. At trial, each of the rape and attempted rape victi ms testified. Karen Schneider testified that on December 15, 1985, at a bout 7:15 p.m., she was4

removing clothes from the clothesline when she was grabbed from behind. The attacker placed his arm around her waist and his ha nd over her mouth. When she screamed, he told her several times, “Shut up, shutup. Shut up, bitch, or I’ll kill you.” He instructed her to open the door, then pus hed her inside and told her to turn off the lights. He continued to push her into the bedroom and onto the bed, and then told her, “Now I’m going to rape you.” Schneider testified that he then removed her underp ants, began to lick the backs of her legs and buttocks, inserted a finger i nto her vagina, and then inserted his penis into her vagina. He then pulled her upri ght and again pushed her through the house, forcing her just past the front door. They began struggling, and he held something against her neck which she wa s unable to identify. She told him she would keep her eyes closed if he would n’t kill her, to which he responded, “You promise? You promise?” She answer ed, “Yes.” He then threw her on the floor, so that she “skidded about six to eight feet on [her] face,” and he ran out the door. Although her attacker remained behind her throughout the entire attack, Schneider was able to describe him from brief glimp ses as dark-haired, about 5'6" tall, with an average build. She also stated that he had a deep voice and that she detected no accent. Dena Shaw testified that on March 7, 1986, at about8:05 p.m., she had just5

returned home when she noticed the living room ligh t had gone out. When she entered the living room, someone grabbed her from b ehind, placing his arm around her waist and his hand over her mouth. He t old her to “Shut up, shut up,” or he would kill her, and he pushed her toward her bedroom, telling her to turn off the light. She turned off the light, and they “just stood right there.” Remaining behind her, he undid her pants, pulled he r pants and pantyhose down, and started caressing her. She testified that he t hen “penetrated [her] with his finger, told [her] to lay down.” As she was laying down, she tried to lay sideways, but he pushed her down so that she was fa ce-down on the floor. He then penetrated her vagina with his penis. After o rdering her to stay on the floor, he left through the back door. Shaw testified thatthe entire episode lasted about ten minutes. Based on brief glimpses of her attack er, Shaw testified that he was dark-haired and about 5'6" or 5'7" tall. She also testified that he had a deep voice and a Spanish accent. Elizabeth Trujillo testified that on June 6, 1986, at about 11:00 p.m., she was walking home when someone grabbed her from behi nd. The attacker placed an arm around her waist and a hand over her mouth a nd pushed her into an alley. As he was pushing her, his hand slipped from her mo uth and she started screaming. He told her, “Shut up, shut up or I’ll kill you,” and then picked her up and took her farther into the alley, pushing her ag ainst a fence. He asked her if6

she had made love before and how old she was. He t ouched her breast and unzipped her pants, and told her to pull down her p ants. He inserted a finger, and then his penis, into her vagina. Then he sat her n ear a dumpster, told her not to turn and look at him or he would kill her, and he r an away. Although her attacker remained behind her throughout the attack, Trujillo testified that she was able to see that his arm was dark-complected and that he wa s about 5'6" to 5'8" tall. She also stated that he had a low-pitched voice, a Span ish accent, and he smelled of alcohol. Lori Lambert testified that on July 10, 1986, at ab out 10:00 p.m., she was at home in her bedroom trying on clothes. While she w as trying on a leotard, the bedroom lights went out, and someone grabbed her fr om behind with an arm around her waist and another arm around her neck. The attacker told her to “shut up, shut up,” or he would kill her, and she fell to the floor. She felt a sharp object near her breast. He said he was going to “h urt [her] bad,” and he told her to take off her clothes. She began to try to talk him out of it and continued trying to talk to him throughout the entire attack. He re sponded several times. They struggled, and she testified that she “ma[d]e it out of the bedroom towards the door, which leads into the living room. ” He at first pulled her back, but then said, “Yes, go ahead and go in there,” and he pushed her into the living room. She then hit the floor in the living room. She was trying to crawl to the7

front door when he started “manipulating [her] brea sts with his hands” and telling her he wanted to “make love” to her. She again tri ed to talk him out of it. He then penetrated her vagina with his fingers. She s creamed; he told her to shut up. Her head hit the floor again. She testified that at this point she was on her knees, with his left arm around her. She again tried to t alk to him and calm him down. He talked to her for a moment, but he then became a ngry and told her again to “shut up, shut up.” She then tried to crawl to the front door. She scr eamed and he told her to shut up and not to look at him. He then banged herhead on the floor again by her hair. She continued to try to talk to him. She te stified that she was then on her stomach; he told her to turn over, then changed his mind and said, “No, don’t.” She then felt that he was naked behind her. He tol d her to spread her legs; she told him she could not spread them any farther. He then penetrated her vagina from behind with his penis once or twice. After th is, he leaned back on his knees. She said, “Don’t hurt me,” and he said, “I won’t.” After talking for a few more moments, he picked her up by her arm and pushed herback towards the bedroom. He left by pushing her into the bedroom and then ru nning out the back door. Based on brief glimpses of her attacker, Lambert de scribed him as darkhaired, about 5'7" to 5'9" tall, with an odor of al cohol on his breath. She also testified that he had deep voice and a Spanish acce nt.2 The record is inconsistent as to the spelling of Ms . Lueras’ name. We

adopt the spelling used in the parties’ briefs on appeal. 8 Vicki Lueras 2 testified that on April 3, 1986, at about 9:15 p.m ., she had just walked home from next door and was on the tele phone in her bedroom when the call was disconnected. When she got up to chec k the phone line, she saw a man, whom she identified as petitioner, standing in the kitchen doorway about four feet away from her trying to turn off the kitc hen light. After he turned off the light, which she stated was “tricky to turn off ,” he came towards her. He turned off her bedroom light, then pushed her down on her bed and tried to remove her pants. When she screamed for her father , he panicked and ran out the back door. Lueras also testified that she had first identified petitioner as her attacker when she saw his photograph in the newspaper. She later identified petitioner in a photo array prepared by the police. In addition to the testimony of the victims, the St ate introduced several inculpatory statements allegedly made by petitioner . Detective Doug Miller testified as to these statements. Miller testified that in August 1986, petitioner and petitioner’s mother came to the police station about another, unrelated matter. Miller stated that petitioner was advised of his ri ghts at that time. Miller testified that, shortly thereafter, petitioner made his firstinculpatory statement about this3 Miller did not explain at trial how he and petition er came to be driving

around Clovis in Miller’s police car. 9 case while Miller and petitioner were driving in Mi ller’s police car around Clovis. 3 Miller testified that he drove petitioner past th e home of Lori Lambert and saw petitioner glance toward the house. Millerthen told petitioner that someone had broken in and raped a young girl in that house. He further told petitioner that he had found a set of fingerprints in the house and was going to see if they were petitioner’s. At trial, Miller admitt ed that this statement about fingerprints was false. Miller testified that petitioner then told him he h ad broken into the house about two or three years before, but there was no o ne inside and nothing worth taking, so he left. Miller stated that a few minut es later, however, petitioner said something to the effect of, “All right, all right, I did have sex with her,” but he took it back almost immediately, saying, “No, no, I was just joking.” They then returned to the police station. Miller continued to talk to petitioner at the polic e station. At one point, petitioner again told Miller that he had sex with agirl inside the Lambert house and asked Miller what was going to happen to him. Petitioner, however, then said, “No, no, there’ve been a lot of rapes in town . I didn’t do it.” Miller testified that on this same day, petitioner was pre sented before the magistrate on10

the other matter for which petitioner had originall y come to the police station, and petitioner was placed in jail on that charge. Miller testified that he again talked to petitionerthe following morning. At that time, Miller was told by jail personnel that p etitioner was going to be bonded out of jail soon. Miller informed petitioner of hi s rights, and then asked if he wanted to talk. Petitioner indicated that he was w illing to talk. Miller testified he told petitioner that the fingerprints found in t he Lambert house had been analyzed and found to be no more than a month or so old. Miller admitted at trial that this was not true. Petitioner then began to make a statement, at firsttelling Miller the same story he had recounted the previous day in the car: that he had broken into the Lambert house approximately two years before but ha d taken nothing. Miller testified petitioner then said that when he was in the Lambert house, he had “looked into the bedroom, and she was undressing, and she was putting on a leotard.” Miller told him, “Raymond, that’s the rape,” and petitioner said, “I know, man.” Miller then started a new statement form and record ed the following statement from petitioner:

About a month ago, I went to a party that was two houses down from the corner of Thirteenth and Merriweather. The house belonged to a heavyset Spanish male, about 23 or 24 years of age. I had ashot4 Although it is unclear from the record, this arraig nment was presumably

for the Lambert incident to which petitioner had co nfessed the previous day. 11 of whiskey, and I had drank two or three beers. I passed out once for a few minutes. When I left the house, I went over to the corner house of Thirteenth and Merriweather. I broke into the house by climbing through the back window. I went to the back bedroom. I saw a light on there that was- -there was a girl in the bedroom, changing into leotards. She didn’t have any underwear on. I turned out the lig ht. Then we were on the ground. She was on her stomach

. I entered her from the back. After I climaxed, I l eft the house through the back door. Then I went back overto the party and had a few more beers. After Miller finished writing down this statement, Miller asked Kurt Staller, a jail superintendent, to come into the room while Miller read petitioner’s statement back to him and again informed petitioner of his ri ghts. Miller obtained petitioner’s admission that the statement was accur ate and that he had not been threatened or forced to make a statement. He then had petitioner sign the statement in the presence of Staller. The following day, Miller escorted petitioner to hi s arraignment. 4 Miller stated that on the way to the arraignment, petition er said he had a drug and alcohol problem. Miller testified that petitioner further said that when he drank alcohol he would black out and “that must be when h e has sex with the girls, but he couldn’t remember.” Petitioner also told Millerto “please tell them I’m trying to cooperate.”12

Miller testified that after the arraignment, petiti oner again stated he had a problem with drugs and alcohol, and that he would n ever break into houses or “have sex with girls without them wanting to” if he weren’t drinking. Miller testified he asked petitioner why he was able to re member the incident with Lori Lambert but couldn’t remember the others. Petition er told him that he may have remembered the Lambert incident because Miller had driven him past her house. Miller then asked petitioner if he wanted to see wh ere the other rapes occurred. Petitioner said that he did and said, “I just want them to know I’m trying to cooperate.” Miller testified that he and petitioner then drove together to the vicinity of Karen Schneider’s residence. Miller told petitione r that this was where the first rape had occurred in December. Petitioner then poi nted in the direction of Karen Schneider’s house and said that he remembered black ing out in that area about six months before and waking up on the grounds of a nearby hospital. When Miller drove petitioner past the locations of the Shaw and Trujillo rapes, petitioner remembered nothing. Miller and petitioner then returned to the police s tation, where Miller read petitioner his rights and took the following statem ent from petitioner, which petitioner signed:

I know I have an alcohol and a drug problem. I kno w when I get drunk, I want to have sex. I know I do not13 remember what happens most of the time when I get drunk. It is possible that I have had sex with sev eral different girls when I have been intoxicated, and I do not remember. However, I know I never intended to hurt any of the girls. Usually, when I get drunk, I end up walking up and down the streets, and when I do that, I would not remember if I had broken into a house o r had sex with anyone. Detective Miller has shown me a house at Thirteenth Street, close to Thornton Street. He ha d told me that the girl in that house had reported she was raped about six or seven months ago. I remember about si x or seven months ago, I got drunk and I walked west on Thirteenth Street from Main. I do not remember what I did, but I do remember that I woke up under a tree at Thirteenth and Thornton, on the property of the old hospital. I honestly know I need help, and I would never want to hurt anyone else. In addition to the testimony of the victims and Det ective Miller, the State presented serology evidence which was largely incon clusive, although it did not exclude petitioner. Kurt Staller, a jail superinte ndent, also testified that he witnessed petitioner sign the Lambert confession, that Miller had read the statement to petitioner, and that petitioner said t he statement was accurate and that he had not been forced to give the statement. Petitioner also testified at trial. Petitioner st ated that he and his mother went to the police station on an unrelated charge b ecause he heard that Detective Miller had been wanting to talk to him. He was arr ested on that charge, taken before the magistrate, and put in jail. Petitionertestified that as he was preparing to be bonded out of jail on the other charge, Detec tive Miller came “rushing in”14

and said they had found his fingerprints in a house of one of the rape victims. Petitioner told him he did not know anything about any rapes. Miller then told petitioner to give a statement and told him he bett er cooperate or it was going to make things harder for him. Petitioner testified t hat he cooperated by making the statement relating to the Lambert rape and signing his name. Petitioner denied telling Miller that he had a drug and alcohol probl em and stated that he did not have a problem with drugs or alcohol. He also deni ed committing any of the rapes or burglaries. Following trial, the jury found petitioner guilty o f all counts. The trial court sentenced petitioner to nine years imprisonme nt on each CSP II count and each aggravated burglary count, and three years imp risonment for the CSP III and the attempted CSP II counts. The trial court order ed all sentences to run consecutively, for a total of sixty-nine years impr isonment. Petitioner’s convictions were affirmed on direct appeal by the N ew Mexico Court of Appeals, and his state habeas corpus petition was dismissed. The New Mexico Supreme Court denied certiorari, and petitioner filed this habeas action in federal court. The district court dismissed petitioner’s federal h abeas corpus petition. Petitioner appeals that dismissal.
I. RIGHT TO IMPARTIAL JURY Petitioner first contends the trial court violated his Sixth Amendment right5 Although petitioner characterizes his argument as aSixth Amendment

violation, his claim implicates both the Sixth Amen dment and principles of due process. See Turner v. Murray , 476 U.S. 28, 36 n.9 (1986) (“The right to an impartial jury is guaranteed by both the Sixth Amen dment . . . and by principles of due process.”). 15 to trial by an impartial jury when it denied his mo tion to conduct individual, sequestered voir dire or to dismiss the jury venire panel on the ground that members of the venire were irreparably tainted by t heir association with one of the panel members who was the brother of one of the victims. 5 During jury voir dire, the first question asked by the prosecutor was whether any members of the panel had read or heard anything concerning the charges. The prosecutor further asked members of the venire the source of the information. One of the panel members, Dale Shaw, responded that he had heard about the charges and that the source of his inform ation was his sister. The prosecutor then asked him whether Dena Shaw, one of the victims, was his sister. Mr. Shaw answered, “Yes.” The trial court then called a bench conference, and no further questions were directed at Dale Shaw. At the bench conferenc e, it was discovered that Mr. Shaw had associated with the members of the currentjury panel a few weeks earlier during jury qualification for an unrelated case and as a juror in the eighthour trial of that case. Petitioner’s counsel obje cted to the venire on the ground that its members’ prior association with Shaw and their awareness of his16

relationship as brother to one of the victims taint ed the entire panel. Defense counsel requested that a new panel be drawn or thateach panel member be sequestered and questioned individually concerning the effects of Shaw’s presence on the panel. The trial court denied defe nse counsel’s motion, although taking it under advisement depending on what develo ped in group voir dire, and ordered that voir dire continue after removing Shaw from the panel. In the jury voir dire that followed, the prosecutorquestioned the panel as to whether any of the members had discussed the facts of the case with Mr. Shaw. Receiving no affirmative response, the prosecutor t hen asked whether any of the members had any contacts or relationships with Shawapart from jury duty. Those contacts were minimal. The prosecutor further questioned the members who h ad previously served with Mr. Shaw on another jury. He asked them wheth er, as a result of that service and their knowledge that he was the brother of one of the victims of the charged crimes, their ability to decide petitioner’s case s olely on the evidence presented at trial and in light of the court’s instructions was impaired. There were no affirmative responses to that question. Following the prosecutor’s questioning, petitioner’s counsel also questioned the members as to the effect their association with Shaw on a previous jury and their knowledge th at he was the brother of one of the victims might have on them in this case. Satisfied with the panel members’17

responses that they could decide the case fairly, t he trial court proceeded with jury selection and trial. On a habeas petition, this court’s review of the “s tate trial court’s rulings on juror impartiality is ‘limited to enforcing the commands of the United States Constitution.’” Brecheen v. Reynolds , 41 F.3d 1343, 1350 (10th Cir. 1994) (quoting Mu’Min v. Virginia , 500 U.S. 415, 422 (1991)). A federal habeas court may reverse a state trial court’s findings of jurorimpartiality only upon a showing of “‘manifest error.’” Id. (quoting Mu’Min , 500 U.S. at 428). This limited review of the state trial court’s rulings is based in part on the broad deference traditionally accorded to trial courts in determini ng jury selection procedures and conducting voir dire. See Mu’Min , 500 U.S. at 423. Limited review also acknowledges that “‘[t]he state trial judge had the benefit of observing the general demeanor of the jurors as the basis for his general finding’” of impartiality. Brecheen , 41 F.3d at 1350 (alteration in original) (quoting Church v. Sullivan , 942 F.2d 1501, 1519 (10th Cir. 1991)); see also Ristaino v. Ross , 424 U.S. 589, 594-95 (1976). Therefore, to establish a constitutional violation based on the trial court’s refusal to allow individual, s equestered voir dire or to dismiss the venire panel, petitioner “must demonstrate eith er that the trial resulted in actual prejudice or that it gave rise to a presumpt ion of prejudice because it involved ‘such a probability that prejudice will re sult that it is deemed inherently18

lacking in due process.’” Brecheen , 41 F.3d at 1350 (quoting Estes v. Texas , 381 U.S. 532, 542-43 (1965)). Petitioner has not identified any actual prejudice on the part of any juror. Instead, petitioner suggests that prejudice should be presumed because the panel members were aware that “one of their group was clo sely related to a victim of one of the charged offenses,” and because certain p anel members had previously served with Dale Shaw on a jury in an unrelated cas e. Petitioner also suggests that, rather than remedying the problem and resolvi ng any concerns about possible prejudice, the group questioning of the panel conce rning any prejudice resulting from their association with Dale Shaw “only served to emphasize the situation.” We conclude that petitioner has failed to establish a presumption of prejudice under the facts of this case. Dale Shaw was immediately removed from the panel when the trial court and attorneys learne d that he was related to one of the victims. Although the trial court denied petit ioner’s motion to conduct individual, sequestered voir dire or to dismiss the panel, the trial court indicated that this ruling was subject to change depending onthe outcome of group voir dire. Both the prosecutor and petitioner’s counsel had the opportunity to specifically question the members of the panel abou t their prior association with Shaw and about their ability to remain fair and imp artial in this case. None of the prospective jurors indicated that they had discusse d petitioner’s case with Shaw.19

Those that had served with Shaw on the prior jury i ndicated that they could remain fair and impartial despite their prior assoc iation with Shaw and despite their knowledge that he was the brother of one of t he alleged victims. “Absent evidence to the contrary, we presume that j urors remain true to their oath and conscientiously observe the instruct ions and admonitions of the
court.” United States v. Easter , 981 F.2d 1549, 1553 (10th Cir. 1992). As noted by the federal district court, “[p]etitioner seeks to establish a presumption of prejudice from what was, at most, a few days contac t in a fairly structured and formal setting. That circumstance is insufficient to establish such a presumption.” We conclude petitioner’s constitutio nal right to an impartial jury was not violated.
II. DENIAL OF CONTINUANCE Petitioner next asserts he was denied his Sixth Ame ndment right to compulsory process for obtaining witnesses in his f avor when the trial court denied his motion for a continuance to secure a wit ness essential to his misidentification defense. Thirteen days before petitioner’s trial was schedul ed to begin, petitioner’s trial counsel discovered an individual in police cu stody, Albert Chacon, who counsel believed bore a “striking resemblance” to p etitioner. Chacon was subsequently returned to Texas on probation violati on charges. Petitioner’s trial20

counsel attempted to secure Chacon’s attendance at petitioner’s trial, but Chacon refused to waive extradition. Defense counsel ther efore moved for a continuance of the trial to secure Chacon’s attendance at trial . The trial court denied the motion for a continuance. When denial of a continuance is asserted as the bas is for a habeas petition, the petitioner must show that not only was the deni al of the continuance an abuse of discretion, but also that the denial was “‘so ar bitrary and fundamentally unfair that it violates constitutional principles of due p rocess.’” Case v. Mondragon , 887 F.2d 1388, 1396 (10th Cir. 1989) (quoting Hicks v. Wainwright , 633 F.2d 1146, 1148 (5th Cir. 1981)). In determining wheth er the denial was fundamentally unfair, this court focuses on the pet itioner’s “need for a continuance and the prejudice or lack of prejudice resulting from its denial.” Id.
at 1397. Petitioner asserts that obtaining the presence of A lbert Chacon, “a[n] individual who had been on probation in Clovis duri ng the period in which the rapes occurred and who bore a striking resemblance to [petitioner],” was “crucial to the defense theory of misidentification.” Petit ioner has not established, however, that he was prejudiced by the refusal to g rant a continuance to allow him time to obtain the witness. Petitioner has pro ffered no evidence to connect Chacon to the crimes for which petitioner was charg ed apart from asserting that21

Chacon resembled petitioner and was reportedly on p arole in the general area during the time the crimes took place. This is ins ufficient to show that Chacon was a “crucial” witness. Further, based on the evidence presented at trial, it is unclear how petitioner’s “misidentification” defense would have been significantly furthered by securing Chacon’s presence at trial. The primary evidence presented at trial identifying petitioner as the perpetrator of the ch arged crimes was petitioner’s confession to the Lambert rape, petitioner’s other inculpatory statements indirectly linking him to the rapes, and Vicki Luer as’ eyewitness identification of petitioner as her attacker. Petitioner’s “misident ification” defense was only relevant insofar as the State was relying on the Lu eras eyewitness identification to connect him to the crimes. At trial, Vicki Lueras positively identified petiti oner as the person who attacked her. After identifying petitioner as the person who assaulted her, Lueras testified as to the opportunity she had during the attack to see her attacker. She testified that when she was attacked, she was able to see her assailant in the light for one-and-a-half to two minutes from a distance o f two to four feet. Further, during voir dire, petitioner’s counsel was able to present Lueras with a photograph of Chacon. After showing Lueras photogr aphs of both Chacon and petitioner, petitioner’s counsel asked Lueras if sh e could see any similarity22

between the photographs and asked whether she couldhave believed Chacon was her assailant if his photograph had appeared in the photo array instead of petitioner’s photograph. Lueras emphatically respo nded that she was positive that petitioner was the person who assaulted her. Because petitioner has not shown that he was preju diced by the trial court’s refusal to grant the continuance, we conclu de the trial court’s denial of a continuance did not undermine the fundamental fairn ess of petitioner’s trial.
III. ADMISSION OF INCULPATORY STATEMENTS Petitioner next asserts he was denied his constitut ional right to a full and fair hearing on the issue of the voluntariness of h is inculpatory statements because the trial court made its voluntariness dete rmination without allowing petitioner to testify. He further asserts that his inculpatory statements were made involuntarily, and therefore the trial court’s admi ssion of the statements violated his Fifth Amendment rights. During petitioner’s trial, the trial court conducte d a voir dire hearing concerning the admissibility of petitioner’s inculp atory statements to the police. Detective Miller testified as to the inculpatory st atements made by petitioner and the circumstances under which petitioner made those statements. His testimony during voir dire was substantially the same as his testimony before the jury. After Miller testified, defense counsel requested t hat the court permit23

petitioner to testify concerning the voluntariness of his inculpatory statements. The trial judge denied his motion, stating that he believed “[t]hat goes farther than the voir dire examination that’s been requeste d.” The trial judge also stated that defense counsel had filed a motion to suppress the statements on voluntariness grounds months before and that counse l was “way outside the time limit for putting on proof of this nature.” “[A] defendant in a criminal case is deprived of du e process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the conf ession, and even though there is ample evidence aside from the confession to supportthe conviction.” Jackson v.
Denno , 378 U.S. 368, 376 (1964) (citation omitted); see also United States v.
Janoe , 720 F.2d 1156, 1164 (10th Cir. 1983). Whether a confession is involuntary is a question of law which this court r eviews de novo. See United States v. Perdue , 8 F.3d 1455, 1466 (10th Cir. 1993).
In Jackson v. Denno , the Supreme Court held that a defendant who objec ts to the admission of a confession on voluntariness g rounds has a constitutional right to a fair hearing and an independent and reli able determination of voluntariness before the confession is allowed to b e heard by the jury. See 378 U.S. at 376-77. At this hearing, “both the underly ing factual issues and the voluntariness of [the] confession [must be] actuall y and reliably determined.” Id.24

at 380. The usual remedy for failing to hold a hearing cons istent with the requirements of Jackson v. Denno is to remand to the trial court for a new hearing on the issue of voluntariness. See id. at 393-94. A habeas petitioner is not, however, automatically entitled to a new hearing “m erely because he can point to shortcomings in the procedures used to decide the i ssue of voluntariness in the
state courts.” Procunier v. Atchley , 400 U.S. 446, 451 (1971). Instead, to be entitled to a new hearing on the voluntariness issu e, petitioner “must also show his version of events, if true, would require the c onclusion that his confession was involuntary.” Id. “A defendant’s confession is involuntary if the gov ernment’s conduct causes the defendant’s will to be overborne and ‘hi s capacity for selfdetermination critically impaired.’” United States v. McCullah , 76 F.3d 1087, 1101 (10th Cir. 1996) (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 225-26 (1973)), cert. denied, 117 S. Ct. 1699 (1997). “In determining whether the defendant’s will was overborne in a particular case , the court examines ‘the totality of all the surrounding circumstances--boththe characteristics of the accused and the details of the interrogation.’” Id. (quoting Schneckloth , 412 U.S. at 226). Relevant factors “include the age, intell igence, and education of the suspect; the length of the detention and questionin g; the use or threat of physical25

punishment; whether Mirandasafeguards were administered; the accused’s physical and mental characteristics; and the locati on of the interrogation.” Perdue , 8 F.3d at 1466. In addition, the court must “con sider the conduct of the police officers.” Id. Our independent review of the record does not estab lish that petitioner’s inculpatory statements were involuntarily given. P etitioner was advised of his constitutional rights before making the statements, and he initialed and signed a written statement and waiver of those rights. Ther e was no suggestion that the police used violence or improper threats or promise s to elicit petitioner’s inculpatory statements. See Bram v. United States , 168 U.S. 532, 542-43 (1897) (holding confession may not be obtained by threats or violence, direct or implied promises, or improper influence); Malloy v. Hogan , 378 U.S. 1, 7 (1964) (same). Although Detective Miller admitted to making false statements about fingerprint evidence found in Lori Lambert’s home, such misrepr esentations, without more, do not render an otherwise voluntary confession inv oluntary. See Frazier v. Cupp , 394 U.S. 731, 739 (1969) (holding interrogator’s misrepresentation to suspect that his co-suspect had already confessed d id not render suspect’s subsequent confession coerced); see also Ledbetter v. Edwards , 35 F.3d 1062, 1070 (6th Cir. 1994) (holding officer’s false state ments that police had matched defendant’s fingerprints to prints found in victim’ s van and that two witnesses26

had identified defendant did not render defendant’s confession involuntary, and stating “[a] defendant’s will is not overborne simp ly because he is led to believe that the government’s knowledge of his guilt is gre ater than it actually is”); Holland v. McGinnis , 963 F.2d 1044, 1051 (7th Cir. 1992) (“[O]f the nu merous varieties of police trickery . . . a lie that relat es to a suspect’s connection to the crime is the least likely to render a confession in voluntary.”). Further, petitioner has not alleged any additional facts which, if proven true, would require the conclusion that his stateme nts were made involuntarily. In suggesting that a new hearing would show that his s tatements were made involuntarily, petitioner raises a number of “unans wered” questions about the circumstances in which the statements were made. P etitioner asserts that his trial “testimony concerning the [voluntariness] issue . . . indicates a far more complicated and conflicting picture surrounding [hi s] statements than that described by Detective Miller.” Petitioner suggest s there was “no satisfactory explanation” as to why the police questioned him ab out the rapes when he went to the police station about an unrelated charge, nor i s there an explanation in the record as to how petitioner came to be driven by De tective Miller in a police car to the scene of one of the rapes. Petitioner also suggests as additional grounds for his involuntariness claim “the fact that the writte n statement was transcribed by Miller in [petitioner’s] jail cell after [petitione r] had been incarcerated for the27

night [and] the fact that these statements occurred over a period of two days while [petitioner] was in custody.” Petitioner finally s tates that he was “a young man with limited education and no experience with the c riminal justice system, trying to do the right thing by turning himself in on a br eaking and entering charge.” Petitioner’s suggestion that, based on “unanswered” questions about the circumstances in which the statements were made, th ere may be facts to support an involuntariness claim is insufficient to establi sh his right to a new hearing on the voluntariness issue. In addition, the matters he does reference, even if taken as true, do not require the conclusion that his inc ulpatory statements were made involuntarily. We therefore conclude that petition er is not entitled to a new hearing on the issue of the voluntariness of his in culpatory statements and that the statements were properly admitted at trial.
IV. SUFFICIENCY OF EVIDENCE Petitioner next contends there was insufficient evi dence to sustain his convictions arising from the Schneider, Shaw, and T rujillo incidents. Petitioner specifically argues there was insufficient evidence to support the convictions because the State did not present any direct eviden ce linking petitioner to these crimes, but instead relied only on petitioner’s con fession to the Lambert offenses, his inculpatory statements connecting him to the Sc hneider incident, and the alleged similarities between the four rapes. Petit ioner further asserts that the28

similarities between the rapes were not so unique a s to establish that petitioner was the perpetrator of all the rapes. In reviewing a sufficiency of evidence claim, we as k “‘whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elemen ts of the crime beyond a reasonable doubt.’" Messer v. Roberts , 74 F.3d 1009, 1013 (10th Cir. 1996) (quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)). In determining whethe r evidence is sufficient to support the convictions, we look at both direct and circumstantial evidence. See United States v. Swallow , 511 F.2d 514, 520 (10th Cir. 1975). This court “may not weigh conflicting evidence nor consider the credibility of witnesses,” but must “‘accept the ju ry's resolution of the evidence as long as it is within the bounds of reason.’" Messer , 74 F.3d at 1013 (quoting Grubbs v. Hannigan , 982 F.2d 1483, 1487 (10th Cir. 1993)). At trial, the State introduced petitioner’s confes sion to the Lambert offenses and petitioner’s inculpatory statements th at he had a drug and alcohol problem, that he would black out and have sex with girls when he drank alcohol, and that he once recalled blacking out and waking up near the Schneider residence. The State also elicited testimony as to the similar ities between all the rapes. These similarities include the following: (1) all t he attacks took place after dark6 There was an eyewitness identification by the victi m in the Lueras

incident. Petitioner, however, challenges the join der of the Lueras attempted rape to the four rape offenses, arguing that the evidenc e from the Lueras incident would have been inadmissible in a separate trial of the four rapes. We therefore do not consider the Lueras identification for purpo ses of petitioner’s sufficiency of the evidence argument. 29 and before midnight; (2) with the exception of one of the victims, all were attacked in their homes; (3) the attacker grabbed a ll the rape victims in the same manner, placing his arm around their waist and his hand over their mouth or neck, and he remained behind the rape victims for the dur ation of the offense; (4) the rape victims were told, “Shut up, shut up, or I’ll kill you”; (5) with the exception of the rape that took place in the alley, the attac ker turned off the lights or had the victim do so; (6) the penetration was similar in ea ch case, with the attacker penetrating the victim vaginally from behind, firstdigitally and then with his penis; (7) each attack was brief; (8) the attackerdid not request stimulation from the victims; and (9) the attacker did not tear the victim’s clothes, removing only the amount of clothing necessary for the assault. In addition, although none of the rape victims was able to identify her attacker, 6 the victims’ general descriptions of their assailant, based on brief gli mpses during the attack, were consistent with each other and fit petitioner’s gen eral appearance: all described their assailant as being between 5'6" and 5'9", hav ing dark hair or being darkcomplected, and having a deep voice, and all but on e identified their attacker as30

having a Spanish accent. Petitioner argues that these common characteristics identified by the State are not so unique as to establish that he was the p erpetrator of those crimes for which no other evidence existed directly identifyin g him as the perpetrator. Petitioner asserts that many of the characteristics , such as attacking the victims at night and in their own homes and deterring the vict ims from shouting out by threatening them, are common to most forcible rapes and thus cannot be relied on to establish that petitioner was the perpetrator of all the rapes. In so arguing, however, petitioner overlooks other characteristics identified by the State which are idiosyncratic and unusual, particularly the features of penetration and the similar language used to prevent the victims from s houting out. Viewing the evidence in the light most favorable to the prosecu tion, we conclude that the characteristics identified by the State, taken toge ther, display “sufficiently distinctive similarities to permit an inference of pattern for purposes of proving identity.” State v. Peters , 944 P.2d 896, 901 (N.M. Ct. App.), cert. denied, 942 P.2d 189 (N.M. 1997); see also State v. Saavedra , 705 P.2d 1133, 1134-35 (N.M. 1985) (stating that, for purposes of Rule 404(b), e vidence of other crimes is admissible to prove identity “when the similarity o f the other crimes to the crime charged ‘demonstrate[s] a unique or distinct patter n easily attributable to one person’” (alteration in original) (quoting State v. Beachum , 632 P.2d 1204, 120631

(N.M. Ct. App. 1981))). After reviewing all the evidence presented at trial in the light most favorable to the prosecution, we conclude a rationa l trier of fact could have found beyond a reasonable doubt that petitioner was the p erpetrator of the challenged offenses. We therefore reject petitioner’s challen ge to the sufficiency of the evidence.
V. JOINDER OF OFFENSES Petitioner next contends the trial court violated h is due process right to a fair trial when it granted the prosecution’s motion to join two separate criminal informations alleging dissimilar facts in support o f the charged offenses. Petitioner was originally charged by two separate i nformations. The first information was based on the Schneider, Shaw, Truji llo, and Lambert incidents, and charged petitioner with three counts of aggravated burglary, three counts of CSP II, and one count of CSP III. A second information, based on the Lueras incident, was subsequently filed, charging petition er with one count of aggravated burglary and one count of attempted CSP II. Before trial, the State moved to join the offenses charged in the two informations. Under New Mexico law, “[t]wo or more offenses shall be joined in one . . . information . . . if the offenses . . . a re of the same or similar character, even if not part of a single scheme or plan.” N.M. R. Ann. 5-203(A)(1). Properly32

joined offenses may be severed, however, if it appe ars the defendant or State is prejudiced by the joinder. See id. 5-203(C). In its motion to join the two informations, the State argued before the trial court that joinder was proper under Rule 5-203(A)(1 ) because the offenses were of a “similar character,” being either burglary or CSP charges, and because the evidence underlying both informations would likely be cross-admissible in separate trials to establish petitioner’s identity. In response, defense counsel argued that joinder would be unduly prejudicial bec ause a jury, faced with the multiple charges and victims and given “the emotion that is involved in the nature” of the CSP offenses, might “gloss over whatwould be important evidence in regard to a particular count, and conclude that the Defendant is guilty of all.” Defense counsel did not contest before the trial co urt the State’s assertion that the evidence underlying both informations would be cros s-admissible in separate trials. Under New Mexico law, the trial court’s decision to join the offenses is reviewed for abuse of discretion. See State v. Gallegos , 781 P.2d 783, 791-92 (N.M. Ct. App. 1989). To obtain federal habeas rel ief, however, petitioner must establish not merely that the joinder of the offens es in a single trial was an abuse of the trial court’s discretion, but that the joind er violated his federal constitutional rights. See Nichols v. Sullivan , 867 F.2d 1250, 1253 (10th Cir.33

1989) (“[O]ur responsibility is to ensure that [pet itioner] was afforded the protections of due process, not to exercise supervi sory powers over the New Mexico state courts.”). “[I]mproper joinder does n ot, in itself, violate the Constitution. Rather, misjoinder . . . rise[s] to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his . . . right to a fair trial.” United States v. Lane , 474 U.S. 438, 446 n.8 (1986). In other words, to obtain habeas relief, petitioner mu st show the joinder of offenses “actually render[ed] petitioner’s state trial funda mentally unfair and hence, violative of due process.” Tribbitt v. Wainwright , 540 F.2d 840, 841 (5th Cir. 1976); see also Herring v. Meachum , 11 F.3d 374, 377 (2d Cir. 1993) ; Featherstone v. Estelle , 948 F.2d 1497, 1503 (9th Cir. 1991); Robinson v. Wyrick, 735 F.2d 1091, 1094 (8th Cir. 1984). The joinder of multiple offenses in a single trial may result in prejudice to a defendant because “the jury may use the evidence of one of the crimes charged to infer a criminal disposition on the part of the def endant from which is found his guilt of the other crime or crimes charged.” Drew v. United States , 331 F.2d 85, 88 (D.C. Cir. 1964). The jury may also confuse or “cumulate the evidence of the various crimes charged and find guilt when, if cons idered separately, it would not so find.” Id.; see also Herring , 11 F.3d at 377 (discussing potential prejudice from joinder of offenses); Closs v. Leapley , 18 F.3d 574, 578 (8th Cir. 1994)34

(same). In his habeas petition, petitioner asserts the tria l court abused its discretion in joining the informations because evidence of eac h of the joined offenses would not have been cross-admissible in separate trials. Petitioner further argues the joinder was improper and prejudicial because of “th e extremely inflammatory nature of the crimes charged” and the attendant ris k that the “the jury would have difficulty dispassionately analyzing the evidence o n each count.” Petitioner also asserts that the State’s case with respect to at le ast three of the rapes was weak and argues generally that the joinder of the inform ations “served no other purpose than to allow the jury to infer a criminal disposit ion on [petitioner’s] part and to cumulate the evidence of the various crimes charged and find guilt, when if considered separately, it would not have so found.” Assuming, without deciding, that there was misjoind er of the informations because the evidence underlying each information wo uld not have been crossadmissible in separate trials, we nevertheless conc lude petitioner has not made the requisite showing of prejudice to be entitled to ha beas relief. “[H]abeas petitioners challenging their state convictions und er the general ‘fairness’ mandate of the due process clause bear an onerous b urden. Because of the significant procedural protection provided by direc t review through the state system, we will not lightly conclude that state cou rt proceedings were so arbitrary7 Petitioner did not object to the joinder of these o ffenses before trial, nor

does he now argue that the joinder of these offense s was improper or prejudicial.

8 Petitioner’s assertion that there was no evidence, independent of the Lueras evidence, identifying petitioner as the perp etrator of the rapes is based on petitioner’s contention that all of his inculpatory statements were obtained unconstitutionally. We have determined, however, t hat petitioner’s inculpatory statements were properly admitted. We therefore co nsider this evidence in determining whether the joinder of informations was prejudicial. 35 as to violate due process.” Herring , 11 F.3d at 378. We first note that we do not have before us a chall enge to the joinder in one information of the four rape and three burglary charges arising from the Schneider, Shaw, Trujillo, and Lambert incidents. 7Instead, we are considering only whether the joinder of the two informations wa s so prejudicial as to deny petitioner’s right to a fair trial. In asserting the State’s case with respect to at le ast three of the rapes was weak, petitioner suggests that by joining the infor mations the State was relying on a strong evidentiary case, the Lueras case, to obta in convictions in the weaker cases. In support of this argument, petitioner ass erts that “[w]ithout the Lueras offense admitted into evidence at [petitioner’s] tr ial on the four rapes, the state would have had no identification.” 8 Therefore, petitioner suggests that to find him guilty of the rapes, the jury would have had to cumulate the evidence or infer a criminal disposition based on its finding of guil t on the Lueras charges. Courts have recognized that the joinder of offenses in a single trial may be9 For example, the confession was signed by petitione r, and petitioner

acknowledged on cross-examination that it was his s ignature. In addition to Detective Miller’s testimony describing the circums tances in which petitioner 36 prejudicial when there is a great disparity in the amount of evidence underlying the joined offenses. See, e.g., United States v. Foutz , 540 F.2d 733, 738 (4th Cir. 1976). One danger in joining offenses with a disparity of evidence is that the State may be joining a strong evidentiary case with a weaker one “in the hope that an overlapping consideration of the evidence [will] lead to convictions on both.” United States v. Clayton , 450 F.2d 16, 19 (1st Cir. 1971). This is not, however, a case where informations sup ported by substantially disproportionate amounts of evidence have been join ed. In arguing the State was joining a strong case with weak cases, petitioner f ocuses on the Lueras charges which were supported by strong evidence, namely, Vi cki Lueras’ eyewitness identification. Petitioner, however, overlooks the strong evidence presented for the Lambert offenses, i.e., petitioner’s signed con fession. This evidence was as strong as, if not stronger than, the eyewitness ide ntification supporting the Lueras offenses. Although at trial petitioner denied invo lvement in all the crimes and stated that he had made the Lambert statement becau se he was directed by the police to “cooperate,” the jury was entitled to det ermine questions of credibility after hearing petitioner’s testimony and reviewing the corroborating evidence presented by the State. 9 Petitioner’s unconvincing and rather vague explan ationmade the confession, there was testimony from anoth er witness that the statement

was read to petitioner and that petitioner agreed t he statement was accurate and voluntarily given. The confession contained unpubl icized facts about the Lambert rape, and details in the statement (such as the tim ing of the offense, the victim’s address, and the method of penetration) were consis tent with the victim’s testimony. The confession was also consistent withother inculpatory statements introduced by the State referring to petitioner pas sing out when he drank alcohol. In addition, Detective Miller testified as to otherinculpatory statements made by petitioner with respect to the Lambert incident, wh ich were also consistent with his written confession to the rape. Miller testifi ed that before making the confession, petitioner twice stated that he had sexwith a woman in the Lambert residence, although both times petitioner retracted the statement almost immediately. 37 of his confession does not detract from the strong evidence of guilt as to the Lambert offenses. Therefore, to the extent petitio ner is arguing the joinder was improper and prejudicial because the state was join ing a weak information with a strong one and because the State had no evidence id entifying him as the perpetrator apart from the Lueras eyewitness identi fication, we reject his argument. Petitioner also asserts the joinder of the two info rmations was prejudicial because of the inflammatory nature of the CSP crime s charged. Petitioner has not explained, however, how the addition of the attempt ed rape charge to the four rape charges already joined in a single information (and to which joinder petitioner did not object) significantly increased the prejudice to petitioner based on the inherent “inflammatory” nature of CSP offens es. Further, the Lueras attempted rape incident had distinctive facts. The jury could therefore readily38

differentiate this incident from the four rape inci dents. For example, because there was no opportunity for penetration in the Lue ras incident, the similar and most distinctive feature of the rapes, the method o f penetration, was not present in the attempted rape. Additionally, unlike the rape incidents, Vicki Lueras was not grabbed from behind, nor was she told “shut up, shut up, or I’ll kill you.” Thus, based on the distinct facts of the Lueras incident, the risk the jury would confuse or cumulate the evidence was not significantly incr eased by the addition of the attempted rape charge to the four rape charges alre ady joined. See Closs , 18 F.3d at 578 (stating federal courts have found “‘no prej udicial effect from joinder when the evidence of each crime is simple and disti nct . . . [because] the jury can easily keep such evidence separate in their deliber ations and, therefore, the danger of the jury’s cumulating the evidence is substantia lly reduced’” (quoting Drew , 331 F.2d at 91)); Herring , 11 F.3d at 378 (stating risk of jury confusion wa s significantly limited because evidence with respectto each offense was distinct and easily compartmentalized); Leach v. Kolb, 911 F.2d 1249, 1258-59 (7th Cir. 1990) (same). Finally, there is nothing in the record indicating the jury was unable to compartmentalize the evidence with respect to each count. Petitioner’s three-day trial was not unduly long or complex. Cf. Closs , 18 F.3d at 578 (determining there was no danger of jury confusion or undue infl uence arising from joinder of39

offenses in part because defendant’s trial was short and the evidence of each crime was simple and distinct). Different witnesse s testified concerning the different offenses, and the issues were relatively simple. Additionally, petitioner’s defenses on each count were not incons istent. Petitioner’s defense and testimony with respect to all the charged crime s was that he did not commit the charged acts. Cf. id . (noting possible prejudice arising from joinder o f offenses if defendant wishes to present separate de fenses to each offense charged or wishes to testify as to some counts but not othe rs); Corbett v. Bordenkircher , 615 F.2d 722, 726 (6th Cir. 1980) (holding there wa s no prejudice from joinder of counts and noting defendant did not contend that th e joinder “confounded his defense because he desired to testify as to some co unts and not as to others”). Under these circumstances, we conclude petitioner h as failed to show that the joinder of the informations resulted in prejudice s o great as to deny him a fair trial.
VI. DOUBLE JEOPARDY Petitioner next asserts his consecutive sentences f or the CSP and aggravated burglary offenses violated his right aga inst double jeopardy because “the aggravated burglary charges in this case requi re[d] proof of the same facts necessary to prove the [CSP] charges” and the CSP c harges “were predicate offenses for his aggravated burglary charges.”40

“The Fifth Amendment’s guarantee against double jeo pardy ‘protects against multiple punishments for the same offense.’ ” Mansfield v. Champion , 992 F.2d 1098, 1100 (10th Cir. 1993) (quoting North Carolina v. Pearce , 395 U.S. 711, 717 (1969)). The Supreme Court has held that in the context of multiple punishment, “the Double Jeopardy Clause does no mor e than prevent the sentencing court from prescribing greater punishment than the legislature intended.” Missouri v. Hunter , 459 U.S. 359, 366 (1983). Under the traditional double jeopardy test set fort h in Blockburger v. United States , 284 U.S. 299 (1932), “‘where the same act or tran saction constitutes a violation of two distinct statutory p rovisions, the test to be applied to determine whether there are two offenses or only on e, is whether each requires proof of a fact which the other does not.’” United States v. Raymer , 941 F.2d 1031, 1043-44 (10th Cir. 1991) (quoting Blockburger , 284 U.S. at 304). The Supreme Court has further clarified that so long as each provision “requires proof of a fact that the other does not, the Blockburgertest is satisfied, notwithstanding a substantial overlap in the proof offered to estab lish the crimes.” Iannelli v. United States , 420 U.S. 770, 785 n.17 (1975). In determining whether a defendant’s conduct consti tutes a single criminal offense or separate criminal offenses for double je opardy purposes, we defer to the state court’s interpretation of the relevant st atutory provisions. See Mansfield,41

992 F.2d at 1100; Brecheisen v. Mondragon , 833 F.2d 238, 240 (10th Cir. 1987). The New Mexico Supreme Court has adopted a two-parttest for determining legislative intent as to multiple punis hment. See Swafford v. State , 810 P.2d 1223, 1233-34 (N.M. 1991). First, the cou rt must inquire as to “whether the conduct underlying the offenses is unitary, i.e. , whether the same conduct violates both statutes.” Id. at 1233. If the conduct is non-unitary, then mult iple punishments would not violate the Double Jeopardy C lause. See id. If the conduct is unitary, the court must then proceed to the second prong of the test, which “asks whether the legislature intended multip le punishment for unitary conduct.” Id. at 1234. Under the second prong, “[if] the legisl ature expressly provides for multiple punishments,” there is no dou ble jeopardy violation and the inquiry ends. Id. If, however, there is no “clear expression of leg islative intent,” the court then applies the Blockburgertest to the elements of each statutory provision. Id. “If [the Blockburger ] test establishes that one statute is subsumed within the other, the inquiry is over and the statu tes are the same for double jeopardy purposes--punishment cannot be had for both.” Id. Although New Mexico courts have not specifically ap plied the Swafford two-part test to a defendant’s convictions for bothCSP II and aggravated burglary, New Mexico courts have applied the test i n analogous situations. For example, based on the unitary conduct prong of the Swafford test, New Mexico42

courts have held that a defendant may be convicted of both CSP II and kidnapping, where kidnapping was the predicate felo ny of the CSP charge, so long as there is a separate factual basis for each offense. See State v. McGuire , 795 P.2d 996, 1001 (N.M. 1990) (holding no double j eopardy violation for convictions of CSP II and kidnapping because kidnap ping was complete “[o]nce defendant restrained the victim with the requisite intent to hold her for service against her will . . . although the kidnapping cont inued throughout the course of defendant’s other crimes”); see also Swafford, 810 P.2d at 1234 (discussing New Mexico courts’ handling of unitary conduct questionin cases involving CSP and kidnapping or false imprisonment). Nevertheless, N ew Mexico courts have held that where the underlying conduct is unitary, a def endant’s conviction for both CSP II and the predicate felony of kidnapping violates the Double Jeopardy Clause. See State v. Pisio , 889 P.2d 860, 869-70 (N.M. Ct. App. 1994) (revers ing the defendant’s conviction for kidnapping where the conduct underlying CSP II and predicate felony of kidnapping was unitary). Therefore, in considering whether petitioner’s cond uct constituted a single criminal offense or multiple offenses under New Mex ico law for double jeopardy purposes, we first address whether the conduct unde rlying both charges was unitary. Only if we conclude the conduct was unita ry do we reach the second prong of the Swafford

test.43

In determining whether the underlying conduct was u nitary, we examine the facts presented at trial in light of the elements o f the charged offenses. See Swafford, 810 P.2d at 1233; see also State v. Sanchez , 923 P.2d 1165, 1166-68 (N.M. Ct. App.) (refusing to hold defendant’s convi ctions for CSP II and underlying felony violated Double Jeopardy Clause o n face of indictment and stating that “double jeopardy claim must be precede d by a careful review of the evidence so that [the court] can first ascertain wh ether the offenses comprised unitary conduct”), cert. denied, 923 P.2d 1164 (N.M. 1996). Conduct is distinct and non-unitary if the “events are sufficiently sep arated by either time or space” or if “the quality and nature of the acts or . . . the objects and results involved” are distinguishable. Swafford, 810 P.2d at 1233-34. New Mexico law defines aggravated burglary, for purposes of this case, as an unauthorized entry of a dwelling with the “inten t to commit any felony or theft therein” and commission of a battery upon any perso n in the place entered. N.M. Stat. Ann. § 30-16-4(C). Aggravated burglary is a second-degree felony. See id. “Battery” is defined as “the unlawful, intentional touching or application of force to the person of another, when done in a rude, inso lent or angry manner.” Id. § 30-3-4. CSP III is defined as “all criminal sexu al penetration perpetrated through the use of force or coercion.” Id. § 30-9-11(E). CSP II, for purposes of this case, is unlawful sexual penetration perpetrat ed “in the commission of any10 For purposes of raising CSP III to a second-degree offense, the CSP

statute lists a number of enhancing factors in addi tion to committing CSP during the commission of a separate felony. For example, when the perpetrator is armed with a deadly weapon, is aided or abetted by one ormore persons, or uses force that results in personal injury to the victim, the CSP offense is raised to a seconddegree felony. See N.M. Stat. Ann. § 30-9-11(D). Likewise, a number of factors, including the commis sion of a battery or being armed with a deadly weapon, can be used to ra ise the offense of burglary to an aggravated burglary. See id. § 30-16-4.

44 other felony.” Id. § 30-9-11(D)(4). 10 Attempt to commit CSP II is a third-degree felony. See id. § 30-28-1. A. Vicki Lueras Offenses Vicki Lueras testified that on the night of April 3 , 1986, she was talking on the telephone in her bedroom when the call was disc onnected. When she got up to check the telephone line, she saw a person she i dentified as petitioner in the kitchen trying to turn off the kitchen light. Afte r about a minute he was able to turn off the light. He then came toward her, backi ng her into her bedroom. He turned off the bedroom light, pushed her down on th e bed, and tried to remove her pants. She started screaming her father’s name, an d he panicked and ran out the back door. She testified that petitioner was in he r house “[f]or about five minutes altogether.” In this case, because the aggravating factor for th e burglary charge was the commission of a battery upon a person inside the dw elling, the aggravated45

burglary was not complete until petitioner unlawful ly entered the victim’s dwelling with the requisite intent to commit a felo ny and committed a battery. Cf.
State v. Livernois , 934 P.2d 1057, 1063-64 (N.M. 1997) (holding, wher e aggravating factor of burglary charge was possessio n of deadly weapon, aggravated burglary offense was complete when, arme d with a deadly weapon and with requisite intent, defendant entered building). The jury instructions for the aggravated burglary charge required the jury to fin d that while inside the victim’s dwelling, petitioner “touched or applied force to V ick[i] Lueras in a rude or angry manner.” The jury instructions for the attempted C SP II charge required the jury to find that petitioner “began to do an act which c onstituted a substantial part of the criminal sexual penetration but failed to commi t the criminal sexual penetration.” Based on our review of the record, we conclude the conduct constituting the attempted CSP and the aggravated burglary was u nitary. First, the acts underlying both offenses were not sufficiently separated in time or space to be considered distinct. See Pisio , 889 P.2d at 869 (holding conduct underlying kidnapping, assault, criminal sexual contact, and C SP II charges was unitary where conduct all occurred within same initial five -minute period following victim’s entry into apartment) ; cf. State v. Kersey , 903 P.2d 828, 834 (N.M. 1995) (holding kidnapping and felony murder were distinctacts where kidnapping took46

place two hours before and sixty miles away from mu rder). Lueras’ testimony established that the acts constituting the attempte d CSP (throwing the victim down on the bed and attempting to undo her pants) a nd those constituting the battery (the offensive touching) took place simulta neously. The entire criminal episode took place over a short period of time and in the same area. There was no significant movement of the victim. Cf. Herron v. State , 805 P.2d 624, 628-29 (N.M. 1991) (holding movement or relocation of vict im tends to establish that acts involved in continuous criminal episodes are s eparate and distinct). The acts underlying the aggravated burglary offense and the attempted CSP offense were also uninterrupted by intervening acts. In addition, because the criminal sexual penetratio n was not completed, the acts constituting attempted CSP were not of a diffe rent nature than the acts constituting battery. Furthermore, the object and result of the aggravated burglary and attempted CSP were not distinct. The jury inst ructions required the jury to find, as one of the elements of the aggravated burg lary charge, that petitioner entered the dwelling with intent to commit CSP; the State has not suggested, either at trial or before this court, that petition er entered the victim’s dwelling with intent to commit theft or another felony unrel ated to CSP. See State v.
Contreras , 903 P.2d 228, 232 (N.M. 1995) (finding object andresult of felony murder and robbery united where, almost immediatelyafter stabbing cab driver,47

defendant took the cab and its contents); cf. Livernois , 934 P.2d at 1063 (holding conduct underlying felony murder and predicate felo ny of aggravated burglary not unitary where defendant entered building with inten t to commit theft, but subsequently committed murder). The evidence prese nted at trial therefore does not allow any determination that a separate factual basis existed for each offense. Instead, the conduct constituting attempted CSP was the same conduct that was used as the aggravating factor for the aggravated b urglary charge, and this aggravated burglary charge was used to raise the attempted CSP offense to attempted CSP II. Because the conduct underlying the Lueras charges w as unitary, we must turn to the second prong of the Swafford test, which focuses on legislative intent to impose multiple punishments for unitary conduct. Our review of New Mexico case law, the relevant statutes, and available legi slative history has revealed no express authorization of multiple punishment in thi s context. We therefore turn to the Blockburgertest to determine legislative intent. Under the Blockburgertest, the court must determine “‘whether each provision requires proof of a fact the other does n ot.’” Swafford, 810 P.2d at 1228 (quoting Blockburger , 284 U.S. at 304). If “one statute is subsumed wi thin the other, the inquiry is over and the statutes are the same for double jeopardy purposes.” Id. at 1223. “A statute is subsumed within another if all of the11 Even assuming the State’s argument is correct, this does not address the

problem of using the aggravated burglary charge as the underlying felony for purposes of raising attempted CSP III to attempted CSP II where the aggravated 48 elements of that statute are included within the el ements of the other statute.”
Contreras , 903 P.2d at 232. In this case, because the attempted CSP II charge was premised on the attempted perpetration of the C SP during the commission of the aggravated burglary , petitioner could not have been convicted of attempted CSP II unless the State proved all the elements of aggravated burglary. The elements of aggravated burglary are thus subsumed b y the elements of the attempted CSP II. See Pisio , 889 P.2d at 870 (holding defendant’s convictions for CSP II, based on a felony, and predicate felony of kidnapping violated Double Jeopardy Clause where underlying conduct was unitary); see also State v. McGruder , 940 P.2d 150, 158 (N.M. 1997) (citing Pisio as case in which double jeopardy principles preclude multiple punishment ba sed on unitary conduct for CSP II and kidnapping, where kidnapping is the felo ny enhancing the base offense). The State argues there was no double jeopardy violation because CSP was “not a necessary predicate to petitioner’s convicti on for aggravated burglary.” The State points out that “petitioner could have be en convicted of aggravated burglary under New Mexico law even if he had not se xually assaulted his victims.” 11 Under the same reasoning, because the CSP II statute does notburglary and CSP charges were based on unitary cond uct.

12 The State also relies on State v. Young , 579 P.2d 179 (N.M. Ct. App. 1978), in arguing that a defendant’s convictions fo r both CSP II and aggravated burglary do not violate the Double Jeopardy Clause under the Blockburger analysis. In Young , the New Mexico Court of Appeals held that the def endant could be sentenced for both aggravated burglary and CSP III because “(1) the aggravated burglary and the CSP offenses each requi red proof of facts which the other did not, and (2) neither offense necessarily involved the other.” Id. at 181. This case does not control our analysis. First, Youngdid not address whether CSP II (CSP perpetrated during the commission of a separate felony) and aggravated burglary were separate offenses for double jeopardypurposes. Instead, the charges in Youngwere CSP III, which does not require the commissio n of a separate felony, and aggravated burglary. Second, as discussed above, New Mexico has since altered its analysis for determini ng legislative intent to impose multiple punishment in the double jeopardy context. See Swafford v. State , 810 P.2d 1223, 1233 (N.M. 1991); State v. Pisio , 889 P.2d 860, 869-70 (N.M. Ct. App. 1995). 49 expressly enumerate aggravated burglary as an eleme nt of CSP II, but instead refers generally to CSP perpetrated during the comm ission of “any other felony,” aggravated burglary is not necessarily subsumed by the CSP II charge. This argument has been rejected, however, by both the Supreme Court and by New Mexico courts in the analogous context of felony mu rder. 12 See Whalen v. United
States , 445 U.S. 684, 693-94 (1980) (holding defendant co uld not be punished for both felony murder and predicate felony of rape bec ause rape offense was subsumed within felony-murder offense even though f elony-murder statute listed other felonies which could satisfy felony element); Contreras , 903 P.2d at 232-33 (adopting Whalen analysis in context of felony murder) ; Swafford, 810 P.2d at 1228 n.4 (suggesting majority’s approach in Whalen “may be understood as an13 We assume the less serious Lueras offense is attemp ted CSP II, for which

petitioner was sentenced to imprisonment for a term of three years. However, we leave this for the parties and district court to de termine on remand.

14 Because petitioner was only charged with CSP III ba sed on the Trujillo incident, which occurred in an alley, this incidentdoes not raise any double jeopardy concerns. 50 exception to traditional analysis [i.e., strict ele ments application of Blockburger ] designed to cope more effectively with the complicated problem of compound and predicate offenses”). In the related situation of criminal statutes writt en in the alternative, New Mexico courts have also indicated that in applying the Blockburgertest to determine legislative intent, the court should “foc us on the legal theory of the case and disregard any inapplicable statutory eleme nts.” State v. Cowden , 917 P.2d 972, 973 (N.M. Ct. App.), cert. denied, 916 P.2d 844 (N.M. 1996). We therefore reject the State’s argument and conclude that petitioner’s convictions for both aggravated burglary and attempted CSP II a rising from the Lueras incident violated the Double Jeopardy Clause of the Constitution. Thus, we remand to the district court so that the less serio us Lueras offense can be vacated. 13 B. Schneider, Shaw, and Lambert Offenses 14 We reach a different result, however, with respect to the charges arising from the Schneider, Shaw, and Lambert incidents. Application of some of the51

factors listed in Swafford suggests unitary conduct. For example, Karen Schneider, Dena Shaw, and Lori Lambert each testifi ed that the entire episode was relatively short and took place in the same gen eral area. There was therefore no significant separation of events by time or plac e. Additionally, viewed generally, the object and result of the initial act s of battery and the acts of CSP were not distinct. As discussed with respect to th e Lueras offenses, the jury instructions required the jury to find that petitio ner entered the victims’ homes with the intent to commit CSP, and there was no ind ication at trial, nor has the State argued on appeal, that petitioner entered the homes with the intent to commit theft or another felony besides CSP. Furthe r, the initial acts of battery, including grabbing and restraining the victims, pus hing them into the bedroom, and pushing them to the floor or the bed, were appa rently carried out for the purpose of furthering and completing the goal of co mmitting the CSP. Other factors, however, indicate that the acts cons tituting battery for purposes of the aggravated burglary charges and the acts constituting CSP were not unitary. New Mexico courts have stated that th e offense of aggravated burglary is complete as soon as the requisite eleme nts have occurred. See State v.
Corneau , 781 P.2d 1159, 1165 (N.M. Ct. App. 1989) (noting that burglary is not an ongoing offense but is complete once the requisi te elements have occurred);
Livernois , 934 P.2d at 1063 (holding acts leading to defenda nt’s convictions for52

aggravated burglary and felony murder were not unit ary where shooting occurred after defendant completed the offense of aggravated burglary by entering building while armed and with intent to commit felony); cf. Pisio , 889 P.2d at 867 (noting that although acts of CSP and acts constituting fel ony offense may be non-unitary, as long as the CSP “occurs within the res gestae of a felony, then it occurs ‘in the commission of’ a felony within the meaning of CSP I I, felony”). Thus, in the case of aggravated burglary based on battery, the a ggravated burglary is complete once the defendant unlawfully enters the dwelling w ith the intent to commit a felony and commits a battery upon someone inside th e dwelling. Additionally, the offense of aggravated burglary does not require that a defendant actually commit a felony after entering the dwelling, but on ly requires that the defendant enter with the intent to commit a felony. Therefor e, in this case, the offense of aggravated burglary was complete as soon as petitio ner unlawfully entered the victims’ homes with the intent to commit CSP and co mmitted a battery, such as grabbing the victims from behind; the offense did n ot depend on the actual commission of the CSP. In addition, the acts of battery and the acts of CS P were of a different quality or nature. The acts of battery included gr abbing the victims, covering their mouths to prevent them from screaming, pushin g them through the house to the bedroom, pushing them on the bed or floor, and restraining them. These acts15 Although New Mexico courts have recognized that act s of force or

restraint occurring both before and after the acts of CSP may be characterized as separate, non-unitary conduct, those acts taking pl ace after the CSP are most plainly distinguishable from the prior CSP. In thi s case, the victim most clearly testifying as to acts of battery occurring after th e act of CSP was Karen Schneider. Schneider testified that after her assa ilant committed the CSP in the bedroom, he pulled her upright, pushed her through her house to the front door, held an object against her neck, and then pushed he r to the floor before he left out the front door. These acts of battery, occurring a fter the CSP, were sufficiently 53 are of a different nature than the acts constitutin g CSP, which requires sexual penetration. Cf. State v. Mora , 1997 WL 751254, at *16-17 (N.M. Nov. 17, 1997) (holding quality and nature of defendant’s acts und erlying felony murder and criminal sexual contact charges were distinct; the acts of criminal sexual contact resulted in injury to genital area, whereas act of felony murder was fatal blow to victim’s head). Further, although some acts of battery, such as restraining the victim while committing the CSP, are necessarily in herent in and therefore inseparable from the act of CSP, other acts of batt ery which occurred both before and after the acts of CSP are not necessarily a part of the CSP. See State v.
Crain , 1997 WL 622771, at *5 (N.M. Ct. App. Aug. 13, 199 7) (stating that CSP III cannot be charged as CSP II, based on commissio n during kidnapping, without some “force, restraint, or deception occurring eith er before or after the sexual penetration”), cert. denied, 944 P.2d 274 (N.M. 1997); Pisio , 889 P.2d at 869-70 (same); Corneau , 781 P.2d at 1164-65 (same, in context of CSP II a nd underlying felony of false imprisonment). 15distinct from the CSP to support the separate charg es. The acts occurred after the

conduct constituting the CSP was complete. See State v. Corneau , 781 P.2d 1159, 1164-65 (N.M. Ct. App. 1989) (stating that “[t]he a ct of CSP is not a continuing offense; it is completed upon penetration” and ther efore the conduct taking place after the completed CSP is separate from the CSP it self). In addition, the acts of CSP and the acts of battery following the completed CSP had a different object and result, as the acts of battery following the CS P were not necessary to accomplish the CSP. Cf. State v. Mora , 1997 WL 751254, at *17 (N.M. Nov. 17, 1997) (holding conduct underlying defendant’s convi ctions for felony murder and the predicate felony of criminal sexual contact was non-unitary, in part because “[n]either contact was necessary to accomplish the other”). 54 There are also other factors, specific to the indiv idual incidents, that indicate the acts underlying the battery and the ac ts underlying the CSP were separate and distinct. For example, Lori Lambert t estified that she struggled several times with her assailant. Lambert testifie d that after one struggle with her assailant, she made it out of the bedroom and into the living room. The attacker at first pulled her back, but then pushed her into the living room. While in the living room, she again struggled with him and attempted to crawl to the front door. New Mexico courts have indicated that such s truggling with the attacker may constitute an intervening event between the ini tial acts of battery and subsequent acts. See State v. Cooper , 1997 WL 736477, at *13 (N.M. Nov. 3, 1997) (holding that acts underlying defendant’s con victions for aggravated battery and felony murder were non-unitary where evidence s howed that after initial battery victim struggled with defendant; this strug gle was an “intervening event” separating the initial battery from the subsequent acts causing victim’s death).55

Thus, the intervening struggles indicate the initia l acts of battery were separate and distinct from the subsequent acts of CSP. In addition, the testimony of two of the rape victi ms, Lori Lambert and Dena Shaw, indicates that in two of the incidents t he assailant’s repeated sexual penetrations constituted separate and distinct viol ations of the CSP statute. In
Herron , the New Mexico Supreme Court held that although t he number of penetrations is not dispositive of the number of vi olations of the CSP statute, multiple penetrations may constitute separate violations of the CSP statute where each penetration is in some sense distinct under th e evidence. See 805 P.2d at 628; see also Pisio , 889 P.2d at 868 (stating Herron provides “proper basis for whether conduct in sex-crime cases is unitary” and should supplement Swafford analysis); State v. Brooks , 877 P.2d 557, 560 n.1 (N.M. 1994) (affirming Herron as appropriate analysis for sex-crime cases). The Herron court listed various factors for a court to consider in determining whet her the multiple acts are distinct, including the location and position of th e victim at the time of each criminal act and distinctions in the manner of comm itting the criminal acts. See 805 P.2d at 628. Applying these factors, the Herron court found that two distinct CSP offenses occurred when the defendant in that ca se forced his victim into a lying position on the floor and inserted his fingerinto her vagina, and then forced her into a kneeling position and penetrated her vag inally with his penis. See id. at56

629. The court stated that these acts were “suffic iently distinct” to support convictions for two CSP offenses. Id. The testimony of Lambert and Shaw indicates that, u nder the analysis of
Herron , there were at least two distinct acts of CSP in b oth incidents. Lori Lambert testified that after her assailant pushed h er into the living room, he penetrated her vagina with his finger. She screame d and he told her to shut up; her head then hit the floor. She testified that atthis point she was on her knees with his left arm around her. She tried to talk to him and he responded for a moment, but he then became angry and told her to “s hut up, shut up.” She then tried to crawl to the front door and she screamed a gain. He told her to shut up and not to look at him, and he banged her head on t he floor again by her hair. She testified that she was then on her stomach. He then told her to spread her legs, and he penetrated her vagina with his penis o nce or twice. Based on this testimony, two distinct CSP offenses occurred when the assailant first penetrated the victim’s vagina with his finger, and then, after she attempted to break away and to talk him out of furt her acts, the assailant repositioned her and penetrated her vagina with his penis. Based on Herron , therefore, petitioner committed and could have been convicted and punished separately for two distinct CSP offenses based on this incident. See id. ; see also Swafford, 810 P.2d at 1233 (“[I]f the defendant commits two discrete acts57

violative of the same statutory offense, but separated by sufficient indicia of distinctness, then a court may impose separate, con secutive punishments for each offense.”). Dena Shaw testified that after her assailant pushed her into the bedroom, they were both standing, and he pulled down her pan ts and her pantyhose. She testified that he then “just kind of started caress ing me with his hand. And he penetrated me with his finger, told me to lay down. And as I was laying down, I kind of tried to lay sideways, and he pushed me dow n to make sure I’d lay face first on the ground.” She then heard some noise be hind her, “which probably [was him] undoing his pants or something,” and he p enetrated her vagina with his penis. Although Shaw’s testimony is ambiguous, a reasonabl e interpretation is that while both Shaw and the assailant were standing, th e assailant penetrated the victim’s vagina with his finger, and then told her to lay down. She then tried to move to her side but he pushed her so she was face- down on the floor; he then penetrated her vagina again with his penis. As wit h the Lambert incident, petitioner could have been convicted for two CSP of fenses based on this incident.

Because there were two distinct CSP offenses in the Lambert and Shaw cases, even if the initial acts of battery were notdistinct from the acts constituting58

the first CSP offense, there remained a separate ac t of CSP. Thus, the aggravated burglary was necessarily completed before, and was distinct from, the second act of CSP and the conduct underlying the CSP and aggravated burglary charges was therefore non-unitary. See Brecheisen , 833 F.2d at 240-41 (holding, in consecutive prosecution case, that defendant’s CSP conviction was not barred by a prior battery conviction arising out of same crim inal episode because evidence established three separate battery offenses; the tw o initial acts of battery were separate and distinct from the third battery which occurred during and which merged with the CSP offense). We conclude that the evidence presented at trial supports the determination that there was independent factual support for each of the charges arising from the Schneider, Shaw, and Lambert incidents. Theref ore, petitioner’s convictions and consecutive sentences for both CSP II and aggravated burglary arising from these incidents did not violate the Constitution’s proscription against double jeopardy. See Swafford, 810 P.2d at 1233.
VII. INEFFECTIVE ASSISTANCE OF COUNSEL Petitioner finally argues he was denied his Sixth A mendment right to effective counsel when his trial counsel failed to secure a key defense witness; failed to ensure that petitioner received a full an d fair evidentiary hearing as to the voluntariness of his inculpatory statements; an d failed to object to petitioner’s59

consecutive sentences as a violation of his right a gainst double jeopardy. This court evaluates ineffective assistance of coun sel claims using the two-part test established in Strickland v. Washington , 466 U.S. 668 (1984). See Houchin v. Zavaras , 107 F.3d 1465, 1471 (10th Cir. 1997). To prevail on an ineffective assistance claim under the Strickland test, petitioner must show that his attorney’s performance "fell below an objective standard of reasonableness" and that the unreasonably deficient performance res ulted in prejudice. Strickland, 466 U.S. at 688, 691-92. To establish prejudice, p etitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. If we determine petitioner has failed to prove prejudice, we need n ot determine whether counsel’s performance was constitutionally deficient. See id. at 697. Petitioner first asserts his trial counsel’s failur e to secure the presence at trial of a key defense witness, Albert Chacon, deni ed him effective assistance of counsel. Petitioner states that although his “tria l counsel filed a motion to continue the trial for the purpose of securing Chac on’s attendance at trial, he did not file an affidavit for a certificate and subpoen a to compel the attendance of the witness until the trial began. Had defense counsel filed the affidavit in a timely manner, he may have been able to compel Chacon’s attendance at trial.” As previously discussed, however, petitioner has faile d to show that he was16 Related to this assertion of deficient performance, petitioner further

contends his trial counsel’s failure to appeal the trial court’s denial of his pre-trial motion to suppress his inculpatory statements denie d him effective assistance of counsel. As discussed above, however, petitioner h as not shown that his statements were involuntarily made and therefore sh ould have been suppressed. There was thus no prejudice resulting from counsel’ s failure to appeal the denial of his motion to suppress the statements. 60 prejudiced by the failure to secure Chacon’s attend ance at trial. Apart from general assertions, petitioner has not shown that C hacon was a key witness based on some meaningful connection between Chacon and th e crimes for which petitioner was convicted. Further, petitioner has not shown how Chacon’s presence at trial would have significantly furthere d his “misidentification” defense. We therefore reject this claim of ineffec tive assistance. Petitioner next argues his trial counsel’s performance was deficient based on counsel’s failure to ensure that he was accordeda full and fair hearing on the voluntariness of his inculpatory statements. As di scussed above, however, petitioner has failed to assert any facts which, ev en if taken as true, would indicate that his statements were made involuntaril y. Therefore, petitioner has failed to establish prejudice arising from the alle ged lack of a full and fair voluntariness hearing. 16 Finally, petitioner asserts his trial counsel’s fai lure to object at sentencing to the imposition of consecutive sentences as a dou ble jeopardy violation denied him his right to effective assistance of counsel. Based on our resolution of17 Petitioner does not expressly argue that consecutiv e sentences for separate

crimes violates the Double Jeopardy Clause. To the extent that he does make such an argument, however, we reject this claim. A s discussed above, the Double Jeopardy Clause prohibits multiple punishments for the same offense in the absence of legislative authorization; the impositio n of consecutive sentences for separate offenses does not implicate double jeopardy. 61 petitioner’s double jeopardy claim above, we need n ot address this separate claim of prejudice here. 17

CONCLUSION This court concludes petitioner’s constitutional ri ghts were not violated by the state trial court’s denial of his motion to dis miss the jury venire or to conduct individual, sequestered voir dire, or by the trial court’s denial of his motion for a continuance to secure a witness. Furthermore, peti tioner’s constitutional rights were not violated by the trial court’s admission of his inculpatory statements or by the joinder of the informations. Petitioner’s conv ictions were supported by sufficient evidence. Petitioner is not entitled to a new trial based on ineffective assistance of counsel. This court concludes, howev er, petitioner’s convictions for both attempted CSP II and aggravated burglary basedon the Lueras incident violated the Double Jeopardy Clause of the Federal Constitution. The federal district court’s judgment on the double jeopardy issue is therefore REVERSED as to the Lueras convictions. The remainder of th e district62

court’s judgment is AFFIRMED . We REMAND to the district court for entry of judgment consistent herewith.