UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

ANTHONY J. AGUILAR, 

 Petitioner - Appellant, 

v. 

CHELSEA WHITE;

 ATTORNEY 

GENERAL OF THE STATE OF NEW 

MEXICO, 

 Respondents - Appellees. 

No. 23-2163 

(D.C. No. 2:20-CV-00362-RB-LF) 

(D.N.M.) 

_________________________________ 

ORDER DENYING CERTIFICATE OF APPEALABILITY

_________________________________ 

Before McHUGH, MURPHY, and CARSON, Circuit Judges. 

_________________________________ 

Anthony J. Aguilar, presently in New Mexico state custody, appears pro se 

seeking a certificate of appealability (“COA”) to challenge the district court’s dismissal 



 Pursuant to Fed. R. App. P. 43(c)(2), Chelsea White replaces Dwayne 

Santisteven as a respondent in this case. 

 This order is not binding precedent except under the doctrines of law of the 

case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive 

value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 

32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

May 2, 2024

Christopher M. Wolpert 

Clerk of Court

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of his 28 U.S.C. § 2254 petition for a writ of habeas corpus.1

 Concluding 

reasonable jurists could not debate the district court’s dismissal of Mr. Aguilar’s § 2254 

petition, we deny a COA and dismiss this matter. 

I. BACKGROUND 

A. State Court Conviction 

In New Mexico state court, a grand jury returned a sixteen-count indictment 

against Mr. Aguilar stemming from a physical altercation that occurred at the home of his 

former girlfriend in March 2015. Mr. Aguilar pleaded guilty to five of the counts, 

including second-degree aggravated burglary, third-degree aggravated battery with a 

deadly weapon, third-degree child abuse recklessly caused with no death or great bodily 

harm, fourth-degree conspiracy to commit aggravated battery, and fourth-degree 

aggravated assault with a deadly weapon. Per his plea agreement, Mr. Aguilar would 

receive a sentence between zero and eighteen years. 

Prior to accepting Mr. Aguilar’s plea, at the change of plea hearing, the state trial 

court explained that the agreement was for a sentence of between zero to eighteen years, 

and that some of the charges were mandatory or optional “serious violent offense[s]” and 

would or could result in substantial incarceration. ROA at 104. Mr. Aguilar testified that 

he had reviewed the agreement with his attorney, it left nothing out, there were no other 

1

 Mr. Aguilar is proceeding without the assistance of counsel. We therefore 

“construe his pleadings liberally.” Ledbetter v. City of Topeka, 318 F.3d 1183, 1187 (10th 

Cir. 2003). However, we “cannot take on the responsibility of serving as [his] attorney in 

constructing arguments.” Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 

(10th Cir. 2005). 

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promises that might have enticed him to plead guilty, he was not under the influence of 

any substance and did not have any mental health disabilities that might affect his 

understanding, and he was satisfied with his attorney’s explanation and advice on the 

case. The trial court accepted Mr. Aguilar’s plea, finding that he had entered the 

agreement knowingly and voluntarily. 

After Mr. Aguilar pleaded guilty, his attorney submitted a sentencing 

memorandum to the district court. The memorandum asserted that Mr. Aguilar was 

“seriously intoxicated and mentally impaired” when he committed the crime, that it was 

“an alcohol-induced event,” that Mr. Aguilar had an excellent reputation in the 

community and was a first-time offender, and that Mr. Aguilar had been attending 

Alcoholics Anonymous meetings and a mental health and anger management class. Id. at 

113, 115. In the memorandum, Mr. Aguilar further argued that he should receive no 

prison time and be released on probation or, if a sentence was required, that he first 

receive a sixty-day diagnostic evaluation. Mr. Aguilar and his attorney then “respectfully 

request[ed] that the Court sentence him to a term of five years’ supervised probation with 

a Conditional Discharge and for the other relief as outlined above.” Id. at 118. 

At Mr. Aguilar’s subsequent sentencing hearing, his attorney had multiple 

witnesses testify that Mr. Aguilar’s crime was the result of alcohol and that he was 

trusted and beloved in the community. Mr. Aguilar’s attorney also reiterated that 

Mr. Aguilar has “an issue with alcohol” which “impaired his reason [and] his ability to 

think clearly,” and was “absolutely out-of-his-mind intoxicated.” Id. at 175, 179. The 

court ultimately sentenced Mr. Aguilar to eighteen years’ imprisonment with eight years 

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4 

suspended for an actual imprisonment term of ten years, followed by five years of 

supervised probation and two years’ parole. 

Mr. Aguilar’s attorney submitted a motion to reconsider the sentence, reiterating 

Mr. Aguilar’s remorse and issues with alcohol. The motion also challenged the 

sentencing court’s reliance on certain facts as inaccurate. Mr. Aguilar subsequently 

withdrew the motion. 

B. State Post-Conviction Proceedings 

Over the ensuing years, Mr. Aguilar filed multiple pro se habeas petitions in state 

district court and multiple petitions for writs of certiorari in the New Mexico Supreme 

Court. In his first post-conviction state habeas petition, Mr. Aguilar raised a claim for 

ineffective assistance of counsel, arguing among other things that his attorney made 

misrepresentations about the terms of the plea agreement and had him sign the agreement 

even though he did not understand it. The state district court dismissed the petition, 

finding Mr. Aguilar had “not stated a cognizable claim for relief. Id. at 274.” Mr. Aguilar 

then filed for writ of certiorari in the New Mexico Supreme Court, arguing among other 

things that he received ineffective assistance of counsel because his attorney misled him 

into signing the plea agreement when Mr. Aguilar believed he would receive a sentence 

of zero to five years, along with the possibility of a conditional discharge. The New 

Mexico Supreme Court denied the petition. 

Mr. Aguilar then filed a second habeas petition in state district court, reasserting 

his ineffective assistance of counsel claim on the basis that his attorney coerced, tricked, 

and misled him into taking the plea and raising several other arguments related to the plea 

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agreement. The state district court summarily dismissed the petition, finding Mr. Aguilar 

was not entitled to relief as a matter of law. Mr. Aguilar then filed a petition for a writ of 

certiorari in the New Mexico Supreme Court, again arguing that he had received 

ineffective assistance of counsel because his attorney forced him into a plea agreement by 

advising him to sign the agreement even though it did not reflect a sentence of zero to 

five years. The New Mexico Supreme Court denied the petition. 

Mr. Aguilar also filed a pro se motion for reconsideration of his sentence, in which 

he asserted, among other things, that he pleaded guilty due to counsel’s misdirection. The 

state district court denied Mr. Aguilar’s motion to reconsider. 

Mr. Aguilar then filed a motion to withdraw his plea based on ineffective 

assistance of counsel, arguing that he did not want to sign the plea agreement, but his 

attorney told him to sign it and informed him that she would fix it at sentencing. The 

district court construed the motion as a third state habeas petition, then entered an order 

denying it. Mr. Aguilar also filed a docketing statement in the New Mexico Court of 

Appeals, indicating he was appealing the district court’s denial of his third habeas 

petition. Mr. Aguilar argued he had received ineffective assistance of counsel because his 

attorney misled him about his plea agreement, deceived him into hiring her because she 

was a white-collar criminal lawyer, and failed to adequately investigate his case or 

prepare for trial. The New Mexico Court of Appeals transferred the docketing statement 

to the New Mexico Supreme Court, and the New Mexico Supreme Court denied the 

petition. Mr. Aguilar filed a third petition for writ of certiorari in the New Mexico 

Supreme Court, again alleging his counsel forced him into a plea agreement and 

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erroneously advised him to accept the plea. The New Mexico Supreme Court denied the 

petition.2

C. Post-Conviction Federal Proceedings 

In April 2020, Mr. Aguilar instituted this 28 U.S.C. § 2254 proceeding in the 

District of New Mexico. In his petition before the federal district court, Mr. Aguilar 

asserted he signed the plea deal only because his attorney misled him into believing that 

he would get no more than five years. He claimed he had previously rejected a plea deal 

for seven and a half years and made clear to his attorney that he would not accept a plea 

offer for more than five years. He further claimed that his attorney—unprepared for 

trial—presented him with the plea deal for a sentence of between zero and eighteen years, 

told him to “just sign it,” and assured him that she “would fix it later” when Mr. Aguilar 

protested. ROA at 20. 

Mr. Aguilar also argued that his attorney failed to raise a “Diminished Capacity” 

argument, had minimal contact with him, “did not present any argument for the court to 

show[] leniency at the [sentencing] hearing,” was “unprofessional,” gave “incompetent 

advi[c]e,” “is a white collar lawyer and not a criminal defense lawyer and was unfamiliar 

with sentencing guidelines and State Laws,” “offered no advice to the defendant at Plea 

Hearing[,] and conducted no Investigation to assist the defendant.” Id. 20–23. Finally, 

Mr. Aguilar argued that the state district court “abused it[]s discretion in allowing the 

2

 Mr. Aguilar also filed two additional petitions with the New Mexico Supreme 

Court. The record reflects that the New Mexico Supreme Court dismissed one and did not 

take action on the other. 

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defense attorney to withdraw as counsel,” id. at 21, and that the prosecution should have 

overcome a rebuttable presumption of vindictiveness when it offered Mr. Aguilar a plea 

deal that was less favorable than a previously offered plea deal. 

The federal district court identified six claims in Mr. Aguilar’s petition. The court 

then concluded that not all of Mr. Aguilar’s claims were exhausted and narrowed his 

petition to three properly exhausted claims: 

1. [Mr. Aguilar’s] attorney was ineffective because she did not know how 

to adequately represent him because she was not a criminal defense 

lawyer; 

2. [Mr. Aguilar’s] attorney was ineffective because she did not file proper 

motions in a timely manner and did not prepare an adequate plea; and 

3. [Mr. Aguilar’s] attorney was ineffective because she did not adequately 

represent him/failed to counsel him so that he did not understand the 

plea or knowingly agree to it. 

ROA at 638–39, 641–42. The court found that Mr. Aguilar had failed to exhaust the 

claims that his counsel was ineffective because she did not pursue the defense discussed 

with him, did not provide an accounting of his funds upon termination of the attorneyclient relationship, and failed to pursue or raise diminished responsibility and intoxication 

at his sentencing and to present his blood alcohol levels at the sentencing hearing. The 

court instructed Mr. Aguilar to clarify whether he intended to proceed with his habeas 

petition solely on his three exhausted claims. Mr. Aguilar filed a letter voluntarily 

dismissing his unexhausted claims and agreeing to proceed with the three claims 

identified by the district court. 

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The district court subsequently denied Mr. Aguilar’s petition and denied a COA. 

Regarding Mr. Aguilar’s first and second claims, the court held the claims were 

conclusory and thus did not warrant habeas relief. The court noted Mr. Aguilar made no 

allegations and provided no evidentiary support regarding his attorney’s lack of 

familiarity with sentencing guidelines or state law, or regarding his attorney’s alleged 

failure to file proper motions in a timely manner. Further, the district court noted that 

Mr. Aguilar failed to make any argument related to the state court’s ruling on either of 

these arguments. 

The district court also dismissed Mr. Aguilar’s third claim because he could not 

demonstrate his attorney was ineffective or coerced him into signing the plea agreement. 

The court first held that Mr. Aguilar failed to carry his burden and demonstrate that the 

state court had not adjudicated this claim on the merits. Under the deferential standard of 

review required when a state court has adjudicated a claim on the merits, the district court 

then held Mr. Aguilar could not “establish that the state court’s decisions were 

unreasonable in light of the evidence present in the state court record.” ROA at 667. The 

court relied on the language in the plea agreement signed by Mr. Aguilar and 

Mr. Aguilar’s testimony before the state court that he understood his plea and he had not 

been coerced, finding in light of the record before the state court that it was not 

unreasonable for the state court to accept his testimony that he was not coerced when he 

signed the plea agreement. In addition, the court noted that Mr. Aguilar had not directed 

it to any authority “show[ing] the decisions in the state court is contrary to or involved an 

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unreasonable application of clearly established Federal law.” Id. The district court then 

denied Mr. Aguilar a COA. 

Mr. Aguilar now seeks a COA in this court, raising four arguments. First, he 

asserts the state trial court erred in denying his counsel’s motion for a continuance before 

Mr. Aguilar’s trial. Second, he asserts the Government should have been required to 

overcome a “rebuttable [presumption of] vindictiveness” when it offered Mr. Aguilar a 

plea deal in excess of a previously offered plea deal, or the Government should have been 

required to “reinstate [its] original plea offer to the petitioner.” Pet. at 7. Third, he argues 

both of his defense attorneys in state court provided ineffective assistance because they 

failed to investigate and request a diminished capacity defense. Finally, Mr. Aguilar 

broadly asserts that his counsel was ineffective because she did not offer advice at 

Mr. Aguilar’s plea hearing or conduct an adequate investigation before he entered the 

plea deal. 

II. LEGAL STANDARDS 

A. Standards Governing a § 2254 Proceeding and a Request for a COA 

“When a federal claim has been presented to a state court and the state court has 

denied relief, it may be presumed that the state court adjudicated the claim on the merits 

in the absence of any indication . . . to the contrary.” Harrington v. Richter, 562 U.S. 86, 

99 (2011). When a petitioner includes in his habeas application a “claim that was 

adjudicated on the merits in State court proceedings,” a federal court shall not grant relief 

on that claim unless the state court’s adjudication of the claim: 

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(1) resulted in a decision that was contrary to, or involved an unreasonable 

application of, clearly established Federal law, as determined by the 

Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable determination of 

the facts in light of the evidence presented in the State court proceeding. 

28 U.S.C. § 2254(d)(1), (2). 

Under § 2254(d)(1), a state court decision is “contrary to” the Supreme Court’s 

clearly established precedent if it “applies a rule that contradicts the governing law set 

forth in [Supreme Court] cases” or if it “confronts a set of facts that are materially 

indistinguishable from a decision of th[e] Court and nevertheless arrives at a result 

different from [that] precedent.” Williams v. Taylor, 529 U.S. 362, 405–06 (2000). A 

state court decision is an “unreasonable application” of Supreme Court law if the decision 

“correctly identifies the governing legal rule but applies it unreasonably to the facts of a 

particular prisoner’s case.” Id. at 407–08. “[A] federal habeas court may not issue the 

writ simply because that court concludes in its independent judgment that the relevant 

state-court decision applied clearly established federal law erroneously or incorrectly. 

Rather, that application must also be unreasonable.” Id. at 411. 

In considering a challenge to a state court decision under § 2254(d)(2), a state 

court’s findings of fact are “presumed to be correct.” 28 U.S.C. § 2254(e)(1). Thus, a 

petitioner challenging a state court’s decision on this basis must show by clear and 

convincing evidence that the determination was factually erroneous. See Miller-El v. 

Dretke, 545 U.S. 231, 240 (2005); Sharp v. Rohling, 793 F.3d 1216, 1219–20 (10th Cir. 

2015) (“When reviewing a § 2254 habeas petition, we must presume the state supreme 

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court’s factual findings are correct unless the petitioner presents clear and convincing 

evidence the findings are incorrect.”). “[A] state-court factual determination is not 

unreasonable merely because the federal habeas court would have reached a different 

conclusion in the first instance.” Sharp, 793 F.3d at 1228 (alteration in original) (quoting 

Wood v. Allen, 558 U.S. 290, 301 (2010)). “If ‘reasonable minds reviewing the record 

might disagree about the finding in question,’ we defer to the state court's determination.” 

Id. (quoting Brumfield v. Cain, 576 U.S. 305, 314 (2015)). 

Before we may exercise jurisdiction over Mr. Aguilar’s case, however, he must 

obtain a COA. See 28 U.S.C. § 2253(c)(1) (“Unless a circuit justice or judge issues a 

certificate of appealability, an appeal may not be taken to the court of appeals from . . . 

the final order in a habeas corpus proceeding in which the detention complained of arises 

out of process issued by a State court.”). Without a COA, we do not possess jurisdiction 

to review the denial of a petition for a writ of habeas corpus. Miller-El v. Cockrell, 537 

U.S. 322, 335–36 (2003). We may issue a COA “only if the applicant has made a 

substantial showing of the denial of a constitutional right.” Charlton v. Franklin, 503 

F.3d 1112, 1114 (10th Cir. 2007) (quoting 28 U.S.C. § 2253(c)(2)). “This standard 

requires ‘a demonstration that . . . includes showing that reasonable jurists could debate 

whether (or, for that matter, agree that) the petition should have been resolved in a 

different manner or that the issues presented were adequate to deserve encouragement to 

proceed further.’” Id. (alteration in original) (quoting Slack v. McDaniel, 529 U.S. 473, 

484 (2000)). 

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B. Ineffective Assistance of Counsel Claims 

“The Sixth Amendment, applicable to the States by the terms of the Fourteenth 

Amendment, provides that the accused shall have the assistance of counsel in all criminal 

prosecutions.” Missouri v. Frye, 566 U.S. 134, 138 (2012). The Supreme Court “has 

recognized that ‘the right to counsel is the right to the effective assistance of counsel.’” 

Strickland v. Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson, 

397 U.S. 759, 771, n.14 (1970)). “We review a challenge to a guilty plea based on a 

claim of ineffective assistance of counsel using the two-part test announced in 

[Strickland].” United States v. Reed, 39 F.4th 1285, 1293 (10th Cir. 2022), cert. denied, 

143 S. Ct. 745, 214 L. Ed. 2d 449 (2023) (quotation marks omitted); United States v. 

Carr, 80 F.3d 413, 417 (10th Cir. 1996) (“[T]he Strickland test also applies to challenges 

to guilty pleas based on ineffective assistance of counsel . . . .”). Under this test, the 

defendant must show: (1) counsel’s performance fell below an objective standard of 

reasonableness; and (2) counsel’s performance was prejudicial. Reed, 39 F.4th at 1293. 

III. DISCUSSION 

We address each of Mr. Aguilar’s exhausted ineffective assistance of counsel 

claims below and conclude that he is not entitled to a COA.3

 As an initial matter, we note 

3

 “Under our firm waiver rule, failure to timely object forecloses appellate review 

unless the interests of justice require our review or unless a pro se litigant was not 

‘informed of the time period for objecting and the consequences of failing to object.’” 

Hayes v. Norwood, No. 23-6089, 2023 WL 8665005, at *2 (10th Cir. Dec. 15, 2023) 

(unpublished) (quoting Johnson v. Reyna, 57 F.4th 769, 778 (10th Cir. 2023)). Because 

Mr. Aguilar failed to specifically object to the Report and Recommendation issued by the 

magistrate judge in this case, he may have waived his right to appellate review of the 

district court’s factual and legal determinations. See Moore v. United States, 950 F.2d 

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that three of Mr. Aguilar’s four arguments in his application for a COA are irrelevant to 

his claims. Mr. Aguilar’s arguments that the state trial court should not have denied his 

counsel’s motion for a continuance and that the prosecution should have been required to 

overcome a “rebuttable [presumption of] vindictiveness” when it offered Mr. Aguilar a 

plea deal do not address the ineffective assistance of counsel claims in these § 2254 

proceedings. Pet. for COA at 8. Similarly, Mr. Aguilar’s argument that his counsel was 

ineffective because she failed to investigate and raise a diminished capacity defense 

relates to one of the unexhausted claims that Mr. Aguilar voluntarily dismissed before the 

district court, rather than any of his remaining claims. Thus, the only relevant argument 

Mr. Aguilar raises in his application for a COA is the broad assertion that his counsel was 

ineffective because she did not offer advice at Mr. Aguilar’s plea hearing or conduct an 

adequate investigation before he entered the plea deal. 

Turning to Mr. Aguilar’s exhausted ineffective assistance of counsel claims, we 

first consider Mr. Aguilar’s claim that his attorney was not a criminal defense attorney. 

Second, we consider his assertion she did not file proper motions in a timely manner and 

prepare an adequate plea. Finally, we consider his argument that his attorney did not 

adequately represent him or help him understand his plea. We deny a COA on the first 

656, 659 (10th Cir. 1991). However, we have not decided whether the firm waiver rule 

operates as an independent basis for denying a COA. See Glaser v. Archuleta, 736 F. 

App’x 733, 736 (10th Cir. 2018) (unpublished); United States v. Thyberg, 722 F. App’x 

847, 850 (10th Cir. 2018) (unpublished). We need not decide this question in this case, 

however, because we conclude even without the firm waiver rule as a bar that 

Mr. Aguilar is not entitled to a COA under the traditional framework. 

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two claims because they are conclusory and unsupported by the record. We deny a COA 

on the third claim because Mr. Aguilar has provided us with no evidence that the state 

court’s adjudication of this claim resulted in a decision that was contrary to or involved 

an unreasonable application of clearly established federal law or in a decision that was 

based on an unreasonable determination of the facts in light of the evidence presented 

before the state court. 

A. Dismissal of Claim 1 

The district court denied relief on Mr. Aguilar’s first claim, that his attorney was 

not a criminal defense lawyer and was unfamiliar with sentencing guidelines and state 

laws. The court concluded that Mr. Aguilar had made only a conclusory statement and 

failed to provide any evidentiary support for this assertion. The district court noted that 

Mr. Aguilar failed to identify which sentencing guidelines or state laws she was 

unfamiliar with and how that prejudiced his defense. Reasonable jurists could not debate 

this conclusion. Thus, denial of a COA on this issue is appropriate. 

First, in his application for a COA, Mr. Aguilar fails to address this ground for 

denying relief at all. He has therefore waived consideration of his first claim, providing 

sufficient basis to deny a COA on this issue. See Davis v. McCollum, 798 F.3d 1317, 

1320 (10th Cir. 2015) (“[T]he district court rejected Davis’s last two grounds of error as 

time-barred. Davis waived any potential challenge to that conclusion by failing to address 

it in his opening brief on appeal.”). 

Even if Mr. Aguilar had properly challenged the district court’s reasoning on this 

point, we would deny Mr. Aguilar a COA. “We have repeatedly held that conclusory 

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allegations are insufficient to warrant habeas relief for ineffective assistance of counsel.” 

Quintana v. Mulheron, 788 F. App’x 604, 609 (10th Cir. 2019) (unpublished); United 

States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994) (explaining in the § 2255 context 

that “we are not required to fashion Defendant’s arguments for him where his allegations 

are merely conclusory in nature and without supporting factual averments”); Hall v. 

Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (“[C]onclusory allegations without 

supporting factual averments are insufficient to state a claim on which relief can be 

based.”). 

As the district court properly pointed out, Mr. Aguilar does not provide any 

evidence to support his claim that his attorney was ineffective. To meet his burden under 

Strickland, Mr. Aguilar must show this objective deficiency based on an evaluation of his 

attorney’s actual performance, not her experience. See United States v. Cronic, 466 U.S. 

648, 665 (1984) (“The character of a particular lawyer’s experience may shed light in an 

evaluation of his actual performance, but it does not justify a presumption of 

ineffectiveness in the absence of such an evaluation.”). Thus, Mr. Aguilar’s allegations 

that his attorney practices as a white-collar lawyer, rather than a criminal defense lawyer, 

do not alone render her assistance ineffective. Additionally, Mr. Aguilar makes no 

allegations and provides no evidence to support the assertion that his counsel was 

unfamiliar with the sentencing guidelines or state law. He makes an unsupported 

allegation in his habeas petition that his attorney advised him to accept the plea 

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agreement “based on a mistaken understanding of the law,” but provides no support for 

this allegation.4

 ROA at 23. 

For the foregoing reasons, reasonable jurists could not debate whether the district 

court should have dismissed Mr. Aguilar’s first exhausted claim. We therefore deny a 

COA on this issue. 

B. Dismissal of Claim 2 

The district court also denied relief on Mr. Aguilar’s second claim, that his 

attorney was ineffective because she did not file proper motions in a timely manner, 

because the claim was too vague and conclusory to warrant habeas relief.5

 The court 

noted that Mr. Aguilar did not identify any motions he believes his counsel should have 

filed or explain how any such alleged omission prejudiced his defense. As with his first 

claim, Mr. Aguilar has not demonstrated that reasonable jurists could debate the district 

court’s conclusion. 

4

 Specifically, Mr. Aguilar appears to suggest that his counsel should have 

informed him that the prosecution would be required to overcome a presumption of 

vindictiveness when it offered him a less favorable plea deal after he rejected the 

prosecution’s initial plea offer. But Mr. Aguilar makes no argument to support his 

allegation that such a presumption would attach to the second plea offer. See United 

States v. Carter, 130 F.3d 1432, 1443 (10th Cir. 1997) (“To establish a claim of 

prosecutorial vindictiveness, the defendant must prove either (1) actual vindictiveness, or 

(2) a reasonable likelihood of vindictiveness which then raises a presumption of 

vindictiveness.” (internal quotation marks omitted)). 

5

 The district court addressed Mr. Aguilar’s assertion under this claim that his 

counsel did not prepare an adequate plea in conjunction with his third claim: that his 

attorney was ineffective because she did not adequately represent him and failed to 

counsel him so that he did not understand the plea or knowingly agree to it. We take the 

same approach here. See discussion supra Section II.C. 

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In his application for a COA, Mr. Aguilar again does not address the district 

court’s ground for denying relief at all and has therefore waived consideration of this 

claim. See Davis, 798 F.3d at 1320. Even if we were to consider this claim, however, we 

would deny Mr. Aguilar a COA. As the district court pointed out, in his habeas petition, 

Mr. Aguilar does not identify any motions which his attorney failed to file in a proper and 

timely manner, nor does he explain how any such alleged failure prejudiced him. For 

example, while Mr. Aguilar asserts his attorney filed a motion for a continuance before 

his trial, his sole allegation regarding that motion relates to the state court’s allegedly 

improper denial of the motion. But Mr. Aguilar provides no evidence and makes no 

allegations regarding his attorney’s failure to submit proper and timely motions. In his 

application for a COA, Mr. Aguilar similarly does not identify any argument he made or 

evidence he provided to the district court in support of his claim that his attorney did not 

file proper and timely motions, instead reiterating his arguments before the district court. 

Reasonable jurists could not debate whether Mr. Aguilar’s second exhausted claim 

should be dismissed. We therefore deny a COA on this issue. 

C. Dismissal of Claim 3 

Finally, the district court addressed Mr. Aguilar’s argument that his counsel was 

ineffective because she did not adequately represent him and coerced him into signing the 

plea agreement.6

 The court first found the state courts had adjudicated this claim on the 

6

 As has been noted, the district court considered, and we now consider, 

Mr. Aguilar’s argument under his second claim that his counsel provided ineffective 

assistance in preparing his plea agreement in conjunction with this third claim. 

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merits, then concluded Mr. Aguilar’s claim did not warrant relief under either prong of 

§ 2254(d). A reasonable jurist could not debate this conclusion. 

In his application for a COA, Mr. Aguilar again does not identify any alleged 

errors made by the district court in dismissing this claim. Instead, he generally reasserts 

that his attorney provided ineffective assistance because she did not offer advice at 

Mr. Aguilar’s plea hearing or conduct an adequate investigation before he entered the 

plea deal. Mr. Aguilar also reiterates that he was told he would be sentenced to five or 

fewer years of imprisonment if he pleaded guilty. 

Adjudication on the Merits 

The district court first found that the state courts had adjudicated Mr. Aguilar’s 

claim on the merits, thus warranting deference to their decisions. Mr. Aguilar raises no 

argument on this point in his habeas petition or in his application for a COA. 

“By its terms § 2254(d) bars relitigation of any claim ‘adjudicated on the merits’ 

in state court, subject only to the exceptions in §§ 2254(d)(1) and (2).” Harrington v. 

Richter, 562 U.S. 86, 98 (2011). “When a federal claim has been presented to a state 

court and the state court has denied relief, it may be presumed that the state court 

adjudicated the claim on the merits in the absence of any indication . . . to the contrary.”

Id. at 99. Importantly, “[t]he petitioner bears the burden of showing a claim was not 

adjudicated on the merits in state court.” Simpson v. Carpenter, 912 F.3d 542, 583 (10th 

Cir. 2018). 

The New Mexico Supreme Court and state trial courts summarily denied all of 

Mr. Aguilar’s petitions. In each of those petitions, Mr. Aguilar raised his claim that he 

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agreed to the plea deal due to the ineffective assistance of counsel. We must therefore 

presume, subject to rebuttal, that Mr. Aguilar’s third claim was adjudicated on the merits. 

See Johnson v. Williams, 568 U.S. 289, 293 (2013) (“[W]hen a state court issues an order 

that summarily rejects without discussion all the claims raised by a defendant, including a 

federal claim that the defendant subsequently presses in a federal habeas proceeding, the 

federal habeas court must presume (subject to rebuttal) that the federal claim was 

adjudicated on the merits.”). Mr. Aguilar made no effort to challenge this presumption. 

Thus, we defer to the state-court decisions. 

Entitlement to Relief Under § 2254(d) 

The district court dismissed Mr. Aguilar’s third claim, concluding that neither 

provision of § 2254(d) warranted relief. A reasonable jurist could not debate the district 

court’s resolution of this claim. 

“Even if a state court resolves a claim in a summary fashion with little or no 

reasoning, we owe deference to the state court’s result.” Paine v. Massie, 339 F.3d 1194, 

1198 (10th Cir. 2003). Thus, “[w]here a state court’s decision is unaccompanied by an 

explanation, the habeas petitioner’s burden still must be met by showing there was no 

reasonable basis for the state court to deny relief [on the merits].” Harrington, 562 U.S. 

at 98 (emphasis added). 

First, to be entitled to relief under § 2254(d)(1), the state court’s adjudication of 

this claim must have “resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as determined by the 

Supreme Court of the United States.” The district court correctly noted that Mr. Aguilar 

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cited to no such authority in his habeas petition. Similarly, in his application for a COA, 

Mr. Aguilar again provides no Supreme Court authority to support an argument that the 

state-court decisions were contrary to or involved the unreasonable application of federal 

law. Although he cites to several decisions issued by the courts of appeals,7

 our inquiry 

under § 2254(d)(1) “begins and ends with ‘the holdings . . . of [the Supreme Court’s] 

decisions as of the time of the relevant state-court decision.’” Anderson v. Mullin, 327 

F.3d 1148, 1153 (10th Cir. 2003) (alteration in original) (quoting Lockyer v. Andrade, 

538 U.S. 63, 71 (2003)). Thus, “circuit precedent does not constitute ‘clearly established 

Federal law, as determined by the Supreme Court,’” and cannot form the basis for habeas 

7

 Review of the cases upon which Mr. Aguilar relies also demonstrates that they 

can be differentiated from the facts of his case. For example, Mr. Aguilar relies on Moore 

v. Bryant, a case in which the Seventh Circuit affirmed the district court’s grant of habeas 

relief where the defendant submitted an affidavit stating the defendant’s attorney had 

misinformed him regarding an impending change to state law. 348 F.3d 238, 240 (7th 

Cir. 2003). As a result of that misinformation, the attorney informed the defendant that he 

would likely serve twenty to twenty-seven years if convicted at trial, but ten years if he 

pleaded guilty. Id. at 240. The defendant was actually facing the choice between a tenyear sentence and a twelve-and-a-half- to fifteen-year sentence. Id. The defense attorney 

testified about his advice to the defendant at a hearing before the state court, and the 

Seventh Circuit noted that the attorney’s testimony was consistent with the defendant’s 

affidavit. Id. at 240–41. Other cases upon which Mr. Aguilar relies similarly involve 

dissimilar factual patterns, e.g., Hart v. Marion Corr. Inst., 927 F.2d 256, 258–59 (6th 

Cir. 1991) (granting habeas relief where the trial judge and defense attorneys incorrectly 

informed the defendant that his maximum period of incarceration would be only fifteen 

years, when the actual maximum was seventy-five years), or otherwise do not 

demonstrate that the state court’s decision in Mr. Aguilar’s case was contrary to or an 

unreasonable application of federal law, e.g., Wellnitz v. Page, 420 F.2d 935, 936 (10th 

Cir. 1970) (“An erroneous sentence estimate by defense counsel does not render a plea 

involuntary”). 

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relief under § 2254(d)(1). Parker v. Matthews, 567 U.S. 37, 48–49 (2012) (quoting 28 

U.S.C. § 2254(d)(1)). 

Second, to be entitled to relief under § 2254(d)(2), the state court proceeding must 

have “resulted in a decision that was based on an unreasonable determination of the facts 

in light of the evidence presented in the State court proceeding.” We find nothing in the 

record before the state courts to suggest that the courts’ findings were unreasonable in 

light of the evidence before them. To the contrary, the record supports a finding that 

Mr. Aguilar had not been coerced into signing the plea agreement and that he was 

satisfied with his attorney’s participation in his obtaining a plea agreement. Mr. Aguilar 

signed an agreement that stated “[t]here are no agreements as to sentence. 0-18 years.” 

ROA at 92. He further affirmed in the agreement, “I have read and I understand this 

agreement” and “I have discussed the case and my constitutional rights with my lawyer.” 

Id. at 94. Mr. Aguilar also affirmed he understood that, in pleading guilty, he gave up 

certain constitutional rights. 

In addition, at Mr. Aguilar’s change of plea hearing, Mr. Aguilar testified under 

oath about his plea, confirming that he had reviewed the document with his attorney and 

that she had answered all his questions regarding what he was pleading to. The court then 

described the plea agreement, noting among other things that “it looks like there is an 

agreement to your sentence of being zero to 18 years.” Id. at 102. The court asked 

Mr. Aguilar “[i]s that your understanding of this agreement?” to which Mr. Aguilar 

responded “[y]es.” Id. at 103. The court then asked, “[i]s there anything that you feel I’ve 

left out,” to which Mr. Aguilar responded “[n]o.” Id. After summarizing the penalties 

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associated with each of the charges to which Mr. Aguilar was pleading guilty, the court 

asked, “[h]as anyone threatened you, coerced you or otherwise forced you to accept this 

agreement, Mr. Aguilar?” to which Mr. Aguilar responded “[n]o.” Id. at 104. The court 

further asked, “[h]ave there been any promises, other than what I just listed to you to get 

you to plead guilty to these charges?” to which Mr. Aguilar again responded “[n]o.” Id.

The court then explained the constitutional rights that Mr. Aguilar was giving up in 

signing the plea agreement, and Mr. Aguilar confirmed that he was knowingly and 

willingly giving up those rights. The court then asked whether Mr. Aguilar was “satisfied 

with [his] attorney’s explanation and advice on this case,” and Mr. Aguilar affirmed that 

he was. Id. at 107. Finally, the court asked Mr. Aguilar, “[d]o you have any questions, 

either for your attorney or for the Court before we go forward?” and Mr. Aguilar 

responded “[n]o.” Id. 

Despite these sworn statements in open court, Mr. Aguilar argued in his state 

habeas petitions that his attorney represented Mr. Aguilar would receive a five-year 

sentence and that she would amend the plea agreement after Mr. Aguilar signed it. In 

support of this argument, Mr. Aguilar attached two letters to his second and third state 

habeas petitions, and provided them as exhibits to his habeas petition before the federal 

district court. In the first, an associate of Mr. Aguilar’s asserts that he accompanied 

Mr. Aguilar to a meeting with his attorney and during that meeting, Mr. Aguilar’s 

attorney told him she would change the plea agreement after he signed it. In the second 

letter, another of Mr. Aguilar’s associates represents that Mr. Aguilar signed his plea 

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agreement under much distress. Both letters post-date Mr. Aguilar’s first state habeas 

petition. 

Based on this record, which reflects that Mr. Aguilar was repeatedly informed 

both in the plea agreement and during his change of plea hearing that he could be 

sentenced for up to eighteen years, the state courts consistently rejected Mr. Aguilar’s 

arguments that his counsel had misinformed him about the number of years to which he 

could be sentenced and thus provided ineffective assistance. In light of the record, and 

particularly Mr. Aguilar’s declarations in open court that he understood his plea 

agreement, had not been threatened or coerced into signing it, and had not been made any 

promises beyond those in the plea agreement, we cannot conclude the state court’s 

finding was unreasonable. 

A state court’s finding on this point is not unreasonable “merely because the 

federal habeas court would have reached a different conclusion in the first instance.” 

Sharp, 793 F.3d at 1228 (quoting Wood, 558 U.S. at 301). And to the extent reasonable 

minds might disagree upon reviewing the record, we must defer to the state court’s 

determination. Id. Reasonable jurists could not debate whether Mr. Aguilar’s third 

exhausted claim should be dismissed. We therefore deny a COA on this issue. 

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IV. CONCLUSION 

For the foregoing reasons we DENY Mr. Aguilar’s request for a COA and 

DISMISS this matter. 

Entered for the Court 

Carolyn B. McHugh 

Circuit Judge 

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