*This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

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

### DEC 12 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOSEPH ROBERT SAAVEDRA, Petitioner-Appellant,

v. JOHN THOMAS, Warden; ATTORNEY GENERAL OF THE STATE OF NEW MEXICO, Respondents-Appellees. No. 96-2113 (D.C. N.M.) (No. CIV-94-170-JP)

ORDER AND JUDGMENT *

Before BRISCOE, McKAY, and LUCERO, Circuit Judges.

Joseph Robert Saavedra appeals the denial of his 28 U.S.C. § 2254 petition. We affirm.
I. Saavedra was convicted of two counts of armed robbe ry, two counts of conspiracy to commit armed robbery, and aggravated assault. These charges stemmed from the August 31, 1988, robberies of Roge r Ward at Allsup’s Store-2-

and Edna Maes at Rio Grande Oil. His codefendant, Oracio Mares, entered into a plea agreement and testified for the prosecution atSaavedra’s trial. Saavedra’s convictions were affirmed on direct appeal to the s tate court. Two habeas petitions in state court were denied. Saavedra fil ed his federal § 2254 petition on February 16, 1994. The district court denied one c laim on June 12, 1995, and then denied the remaining claims on April 22, 1996.
II. On appeal, Saavedra contends the prosecutor engaged in misconduct that violated his due process rights, that he was denied effective assistance of counsel, that the trial court engaged in conduct so prejudic ial that it violated his due process rights, and that his rights to due process were violated when the prosecution induced his codefendant to enter into aplea agreement in exchange for testimony against Saavedra.
Prosecutorial misconduct To be entitled to habeas relief for prosecutorial m isconduct, a petitioner must show there was a violation of federal constitu tional rights that so infected the trial with unfairness as to make the resulting conviction a denial of due process. Fero v. Kerby , 39 F.3d 1462, 1473 (10th Cir. 1994). Allegations of prosecutorial misconduct present mixed issues of law and fact that are subject to de novo review. Id.1 Saavedra also asserts the plea agreement violated New Mexico’s habitual

offender statute. However, federal habeas relief is not available for violations of state law. Lujan v. Tansy , 2 F.3d 1031, 1035-36 (10th Cir. 1993). -3- Saavedra argues the prosecution engaged in miscondu ct violative of his due process rights by inducing his codefendant Mares to accept an improper and highly favorable plea agreement contingent upon tes timony implicating Saavedra. 1 Mares faced a sentence of seventy-four years’ impri sonment if convicted of all charges, but the government agreed to recommend a s entence of eighteen years’ imprisonment if Mares pleaded guilty to armed robbe ry, or a sentence of three years’ probation if Mares pleaded guilty and testif ied against Saavedra. Saavedra cites United States v. Waterman , 732 F.2d 1527 (8th Cir. 1984), in support of his argument. In Waterman , the panel reversed the district court’s denial of a 28 U.S.C. § 2255 petition, holding beca use Waterman’s accomplice had entered into a plea agreement contingent upon t he contents and results of his testimony, the invitation to perjury was so great t hat Waterman was denied a fair trial. Saavedra’s reliance on the panel’s decision in Watermanis misplaced, however, because the Eighth Circuit considered the case en banc and affirmed the district court. Id. at 1533. The opinion relied upon has no precedent ial value. United States v. Gomez , 810 F.2d 947, 957 (10th Cir. 1987). The plea agreement between Mares and the governmentis not a part of the record on appeal, but trial testimony did not indic ate the agreement was-4-

contingent on specific results. Mares testified th e agreement required him to testify truthfully, and that his plea could be reje cted based on how he testified.
See Gomez , 810 F.2d at 956 (testimony of accomplice who agre ed to testify truthfully in exchange for government’s agreement t o support Rule 35 motion was admissible). Saavedra offers no evidence that Mare s’ agreement was improperly contingent. See United States v. Dailey , 759 F.2d 192, 196-201 (1st Cir. 1985) (plea agreement that predicated accomplice’s senten ce reduction on value or benefit of his cooperation not impermissible induce ment to lie). Saavedra argues, in the alternative, the court shou ld have specifically instructed the jury concerning the nature of Mares’ plea agreement and the risk of perjury it created. Saavedra cites Dailey , where the First Circuit held when an accomplice has struck a plea agreement, the jury sh ould be informed of the exact nature of the agreement, defense counsel should be permitted to cross-examine the accomplice about the agreement, and the jury sh ould be specifically instructed to weigh the accomplice’s testimony with care. 759 F.2d at 196. Here, the court admitted the plea agreement into evidence and defen se counsel cross-examined Mares about the plea agreement. The court also gav e the following jury instruction: You alone are the judges of the credibility of the witnesses and the weight to be given to the testimony of each of them

. In determining the credit to be given any witness, you should take into account his truthfulness and his untruthf ulness, his ability-5-

and opportunity to observe, his memory and manner w hile testifying, any interest, bias or prejudice that he may have , and the reasonableness of his testimony considered in the l ight of all the evidence which has been presented in this case. Trial Tr. Vol. III at 8-9 (emphasis added). The co urt did not, as recommended in Dailey , specifically instruct the jury to weigh Mares’ te stimony with care. Daileyis distinguishable. Saavedra seeks habeas relief from a state court conviction while Daileywas a direct appeal. Any requirement that a trial court specifically instruct a jury to weigh an accomplice ’s testimony with care is not a constitutional requirement and is not sufficient to entitle a petitioner to relief under § 2254. Scrivner v. Tansy , 68 F.3d 1234, 1239 (10th Cir. 1995), cert. denied116 S. Ct. 1277 (1996). Federal habeas proceeding s “may not be used to set aside a state conviction on the basis of errone ous jury instructions unless the errors had the effect of rendering the trial so fun damentally unfair as to cause a denial of a fair trial in the constitutional sense. ” Hunter v. New Mexico , 916 F.2d 595, 598 (10th Cir. 1990). “The established safeguards of the Anglo-American l egal system leave the veracity of a witness to be tested by cross-examination, and the credibility of his testimony to be determined by a properly instructed jury.” Hoffa v. United States , 385 U.S. 293, 311 (1966). In Hoffa , the court held the fact that a government informant was under federal indictment and may have had motives to lie did not render his testimony constitutionally inadmissible. The necessary safeguards2Saavedra asserts in a footnote that the government violated New Mexico law by

assisting Mares in testifying falsely. He submits that because the prosecutor was aware of Mares’ statement vindicating Saavedra, New Mexico’s rules of professional conduct prohibited the prosecutor from offering Mares’ testimony that Saavedra participated in the robberies. N.M. Stat. Ann. § 16-304. To the extent such a claim is even addressable in a § 2254 petition, the claim is without merit. Mares initially told police officers that Saavedra participated in the robberies and testified that his subsequent letter to the contrary was a lie concocted at Saavedra’s direction. There is no evidence the government assisted Mares in testifying falsely. -6- were fulfilled in that the informant was subjected to rigorous cross-examination, and the trial court gave a general credibility inst ruction. Because these same safeguards were present in the instant case, Saaved ra’s claim of denial of due process fails. Testimony of Parole Status Saavedra also accuses the government of eliciting e vidence of his parole status from Mares, in violation of the trial court’ s order in limine which excluded evidence of prior convictions. During trial, the g overnment asked Mares about a letter he had written in which he stated Saavedra w as not with him during the 1988 armed robberies. 2 Mares testified he had given the letter to Saaved ra’s girlfriend:

Q. And to your knowledge she was going to give it to Joseph Saavedra? A. Yes. Q. Who was going to do what with it?-7-

A. To try to--if he was going to, you know, take it to court, this Court, this--his charge to court for trying to get them dropped, or to try to keep them from getting a parole hearing or something. Trial Tr. Vol. I at 207. Saavedra moved for mistri al on the basis that Mares’ reference to Saavedra’s parole status violated the court’s order in limine. The court instructed the jury to disregard the last few words of Mares’ statement. The court then questioned Mares outside the presence of the jury: Q. . . . You were--you made a statement just a momen t ago concerning an attempt to help Mr. Saavedra on his parole violation hearing, something to that effect. Were you instructed not to go into that? A. He just asked me not to mention that he was on pa role because it was-- Q. Okay. So Mr. Martinez asked you-- A. Because it might pertain to the case. Q. Why did you say that, do you know? A. Slip of the tongue. It was the truth. I am tryi ng to tell the truth and the questions were coming out pretty fast. Id. at 209. The court concluded Mares’ reference to S aavedra’s parole status was inadvertent and refused to grant a mistrial. Saavedra argues his case is analogous to United States v. Sands , 899 F.2d 912 (10th Cir. 1990), a direct appeal. In Sands , the government agreed to advise its witnesses not to mention the fact that Sands ha d been in a penitentiary. The government asked a witness where Sands had lived du ring the time the witness knew him and the witness responded Sands had been i n prison. Sands moved for a mistrial, but the motion was denied. This court held the district court erred in-8-

not granting the motion for mistrial, and that whil e the prosecutor’s conduct may not have risen to the level of misconduct, it certa inly bordered on negligence. Sands is distinguishable from the present case. The tri al court in Sands found the prosecutor had not properly anticipated t he witness’ answer to his question. Here, there was no such finding. The pr osecutor in this case reasonably could have expected an answer to the effect that Ma res had written the letter to try to get the current charges against Saavedra dro pped, rather than to benefit Saavedra in a parole violation hearing. The govern ment is normally not responsible for unsolicited, non-responsive remarks from its witnesses. See United States v. Copeland , 51 F.3d 611, 616 (6th Cir.), cert. denied 116 S. Ct. 199 (1995). The federal court may overturn a state court convic tion only when the defendant’s constitutional rights have been violate d. Coleman v. Brown , 802 F.2d 1227, 1237 (10th Cir. 1986). To establish a c onstitutional violation from improper admission of testimony, the testimony musthave been so prejudicial in the context of the proceedings as a whole as to dep rive the defendant of the fundamental fairness essential to the concept of du e process. Nichols v. Sullivan , 867 F.2d 1250, 1253 (10th Cir. 1989). Given the st rength of the government’s case against Saavedra, including identification by the two victims and the-9-

testimony of Saavedra’s accomplice, Mares’ referenc e to Saavedra’s parole status was not so prejudicial as to deprive Saavedra of du e process. Ineffective assistance of counsel Saavedra contends he was denied his Sixth Amendmentright to effective assistance of counsel. To obtain reversal of a con viction on the basis of ineffective assistance of counsel, the defendant mu st show his counsel’s performance was deficient and that the deficient pe rformance prejudiced his defense. Strickland v. Washington , 466 U.S. 668, 687 (1984). This requires showing counsel’s errors were so serious as to depr ive defendant of a fair trial. Whether a defendant received effective assistance o f counsel is a mixed question of law and fact which we review de novo. United St ates v. Prows , 118 F.3d 686, 691 (10th Cir. 1997). Saavedra claims that prior to trial he discussed wi th his attorney tattoos he had on his chest, arms, and hands. According to Sa avedra, he told his attorney he did not want to show the tattoos to the jury becaus e they would think he was an ex-convict. Saavedra alleges his attorney neverthe less forced him to display the tattoos to the jury during cross-examination of War d. Saavedra concedes his attorney may have had a reason for the demonstratio n, such as to impeach Ward’s description of Saavedra, but since Ward testified S aavedra wore a jacket covering his entire chest, there was no reason to display hi s chest to the jury.-10-

Saavedra sets out his recollection of the tattoo di splay in an affidavit attached to his brief in support of his § 2254 peti tion. There is no reference to any such demonstration in the trial transcript. Ev en if the demonstration occurred, there is a strong presumption that counse l’s conduct was within the wide range of reasonable professional assistance. Rogers v. United States , 91 F.3d 1388, 1392 (10th Cir. 1996), cert. denied 117 S. Ct. 1000 (1997). Saavedra has not overcome the presumption that the demonstration constituted sound trial strategy. Here, counsel’s strategy could have been to display the tattoos to impeach Ward’s description of Saavedra, which omitt ed any reference to tattoos. Saavedra also asserts “defense counsel failed to impeach Mares effectively with the improper plea agreement, failed to appeal all objections made at trial, and failed to move for a mistrial when the only dis interested witness identified Mares, not Saavedra as the robber.” Appellant’s Br . at 24. He argues the cumulative effect of counsel’s omissions denied him a fair trial. Saavedra’s counsel thoroughly cross-examined Mares with regard to his plea agreement. Saavedra does not indicate what qu estions counsel should have asked or what objections counsel should have appeal ed, and he cites no authority that requires an attorney to appeal all objections made at trial. As for his contention that counsel failed to move for mistrial “when the only disinterested witness identified Mares, not Saavedra as the robbe r,” it is not clear to which3While Saavedra’s tattoos may have rendered his appearance different from the

other men in the display, Ward testified that he saw no tattoos on Saavedra. -11- witness he refers since he fails to reference the t rial transcript. Both Ward and Maes identified Saavedra as one of the robbers.
Trial Court’s Conduct Saavedra claims the trial judge “displayed a hostil e demeanor toward the defense, openly yelling at defense counsel during t rial.” Appellant’s Br. at 25. To sustain an allegation of bias by the trial judge as a ground for habeas relief, a petitioner must “factually demonstrate that during the trial the judge assumed an attitude which went further than an expression of h is personal opinion and impressed the jury as more than an impartial observ er.” Brinlee v. Crisp , 608 F.2d 839, 852-53 (10th Cir. 1979). Saavedra’s bare assertion, with no reference to the trial transcript, fails to demonstrate bias on the part of the trial judge. Saavedra also contends the trial court’s admission of a photograph array violated his due process rights. He asserts a phot ograph display presented to Ward and Maes before trial was unconstitutionally s uggestive because the photograph of Saavedra was glaringly different fromthe other four photographs in the display. He was the only individual wearing a tank top with visible

tattoos. 3-12-

Determining the constitutionality of a pretrial ide ntification procedure involves a two-step analysis; first, the court mustdetermine whether the procedure was unnecessarily suggestive, and if foun d to have been unnecessarily suggestive, the court must weigh the corrupting inf luence against the reliability of the identification. Grubbs v. Hannigan , 982 F.2d 1483, 1489-90 (10th Cir. 1993). Whether admission of pretrial identification testim ony violated due process is reviewed de novo, although the underlying facts fou nd by the state court are entitled to a statutory presumption of correctness pursuant to 28 U.S.C. § 2254(d). Id. at 1489 n.5. Here, the trial court found two of the photographs “might be a little bit different, but not to the point that they are imper missibly suggestive. If you look at the profiles and you look at the face, direct fa ce, then even the additional photos may have some general similarities.” Tr. of Mar. 15, 1989, Proceedings at 33. Our review of the state court’s factual findin gs is precluded by Saavedra’s failure to include the photograph display in the re cord on appeal. Therefore, based on the record before us, we cannot conclude t he display violated Saavedra’s right to due process. Saavedra also contends the trial court violated his right to due process by limiting his voir dire of the jury. His attorney p osed the following question during voir dire: “Do you think that someone being very drunk or being very high-13-

would have any effect on their memory at all?” Tri al Tr. Vol. I at 63. The trial judge interrupted, stating he would not permit him to go into such hypothetical and philosophical matters. Later, after asking if any of the potential jurors had strong feelings about plea bargains, defense counse l asked a particular juror whether he could think of a reason why someone might lie. The trial judge called counsel to the bench and stated he would not permitsuch irrelevant questions. The trial judge is responsible for insuring a defen dant is not denied his Sixth Amendment right to trial by an impartial jury . United States v. Gillis , 942 F.2d 707, 709 (10th Cir. 1991). To guarantee an impartial jury, it is often necessary for the voir dire examination to include specific questions concerning particular sources of possible juror bias. Id. at 710. The trial court retains great latitude, however, in deciding what questions shoul d be asked on voir dire. Mu’Min v. Virginia , 500 U.S. 415, 424 (1991). Saavedra submits that because the prosecution relie d so heavily on Mares’ testimony, it was important to uncover any prejudic es that might have affected the jurors’ ability to judge Mares’ credibility. The t rial judge restricted Saavedra from asking the venire “hypothetical” questions. H e permitted questioning about knowledge of cocaine abuse, how addicts get money t o pay for cocaine, and the effect of the passage of time on memory. He also a llowed Saavedra to explain plea agreements and to ask the potential jurors if they had strong feelings about4Because Saavedra filed his petition in the district court prior to the effective date

of the Antiterrorism and Effective Death Penalty Act, the Act’s provisions which require issuance of a certificate of appealability before petitioner may proceed on appeal are inapplicable to this case. United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). -14- plea bargains. Saavedra has not shown that limitat ions on voir dire resulted in a biased jury or otherwise prejudiced his defense.
III. We GRANT the certificate of probable cause 4 and AFFIRM the denial of the petition. Entered for the Court
MARY BECK BRISCOE Circuit Judge