* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable G. Thomas Van Bebber, Chief Judge, UnitedStates District Court for the District of Kansas, sitting by design ation.

UNITED STATES COURT OF APPEALS Filed 10/22/96 FOR THE TENTH CIRCUIT

VICTOR ONTIVEROS,

Petitioner-Appellant,

v. DONALD A. DORSEY, Warden; ATTORNEY GENERAL FOR THE STATE OF NEW MEXICO,

Respondents-Appellees. No. 96-2036 (D.C. No. CIV-94-993-HB) (D. N.M.)

ORDER AND JUDGMENT *

Before BRISCOE and MURPHY, Circuit Judges, and VAN BEBBER, ** District Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, appellant’s1 On April 24, 1996, while petitioner’s appeal was pe nding, the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), Pu b.L. No. 104-132, 110 Stat. 1214, was enacted into law. AEDPA amended 28 U.S.C . § 2253 to require a “certificate of appealability” issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” Id. § 2253(c)(2). Because petitioner here filed his appeal and was granted a certificate of probable cause before the amendment of § 2253, the district court’ s grant of a certificate of probable cause under the version of § 2253 then in effect was proper. Nickel v. Hannigan , No. 94-3417, 1996 WL 560706, *9 n.4 (10th Cir. Se pt. 30, 1996). Also during the pendency of this appeal, the PrisonLitigation Reform Act of 1995 (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996), amending the in forma pauperis statute, 28 U.S.C. § 1915, was enacted on April 26, 1996. Because petitioner’s permission to proceed in forma pauperi s was granted by the district court prior to PLRA’s enactment date and was not re voked, we determine it unnecessary to decide whether the amendments to § 1 915 apply here.
-2- request for oral argument is denied, and the case i s ordered submitted without oral argument. Petitioner-appellant Victor Ontiveros appeals from the district court’s order adopting the recommendation of the magistrate judge and denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 225 4. Petitioner filed his notice of appeal on February 13, 1996, and the district co urt granted a certificate of probable cause to appeal on February 27, 1996. 1 On appeal, petitioner claims (1) his convictions we re not supported by sufficient evidence; (2) the trial court lacked subject matter jurisdiction over his criminal prosecution; and (3) his right to appeal w as violated by the provision of an inadequate record which hampered his presentatio n of his claim of prosecutorial misconduct. “We review the district court’s legal conclusions de novo and its factual findings for clear error.” Th omas v. Kerby , 44 F.3d 884, 886 (10th Cir. 1995). We note petitioner does not appe al two additional issues that-3-

were also rejected by the district court: (1) wheth er petitioner had a valid entrapment defense; and (2) whether the trial courterred when it refused to strike three jurors for cause. As these issues are not ap pealed, any challenge by petitioner to the district court's rulings on these issues is waived. See United
States v. Santistevan , 39 F.3d 250, 256 (10th Cir. 1994).
FACTS The basic facts in this case are undisputed. In Oc tober 1991, petitioner and his codefendant, Nick Chavez, drove from Alamagordo , New Mexico, to El Paso, Texas, allegedly to purchase car parts. Prior to their departure, Jesus Carrillo, an undercover agent, had arranged to meet the pair in El Paso, where petitioner and Chavez had arranged for Carrillo to purchase cocain e from a third party. Carrillo paid petitioner and Chavez to transport the cocaine back to Alamagordo inside the spare tire in Chavez’s van. Petitioner turned the cocaine over to Carrillo at a meeting at Chavez’s house in Alamagordo. Several m onths later, petitioner and Chavez were arrested and charged with one count of trafficking cocaine by distribution, N.M Stat. Ann. § 30-31-20(A)(2), and one count of conspiracy to traffic cocaine by distribution, N.M. Stat. Ann. §§ 30-28-2 and 30-31-20 (A)(2). Following a jury trial, petitioner was convicted onboth counts and sentenced to nine years’ imprisonment on the first count and thr ee years’ imprisonment on the second count, to run consecutively. Both sentences were enhanced by one year under the New Mexico habitual offender provisions. The New Mexico Court of Appeals affirmed petitioner ’s convictions on April 7, 1994. A petition for certiorari to the Ne w Mexico Supreme Court was-4-

summarily denied. Petitioner filed a state petitio n for habeas corpus relief which
also was denied. Petitioner then filed the federal habeas corpus petition which is the subject of this appeal, raising the same issues he raised to the state court.
DISCUSSION Insufficient Evidence : Petitioner contends the state did not prove each el ement of the crimes for which he was convicted. In considering the suffici ency of the evidence supporting a state conviction, a federal court mustconsider the record and, “‘after viewing the evidence in the light most favorable to the prosecution,’” ultimately
decide whether no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Bowser v. Boggs , 20 F.3d 1060, 1064 (10th Cir.)(quoting Jackson v. Virginia , 443 U.S. 307, 319 (1979)(citation omitted)), cert . denied , 115 S. Ct. 313 (1994). Petitioner argues there was insufficient evidence t o prove he transferred cocaine to another, an element of trafficking cocai ne by distribution. See section 30-31-20(A)(2). Petitioner asserts his participati on in Carrillo’s purchase of the cocaine was by way of introduction to the source on ly and did not constitute “‘distribution, sale, barter, or giving away any co ntrolled substance.’” Appellant’s Br. at 14 (quoting section 30-31-20(A)( 2)). In addition, he argues the cocaine was never his, and therefore, “it was l ogically impossible for him to sell, distribute, trade or do anything else with th e cocaine.” Id. at 15. Under New Mexico law, “‘traffic’” means “distributi on, sale, barter or giving away of any controlled substance.” N.M. Stat. Ann. § 30-31-20(A)(2).-5-

The distribution of a controlled substance is defin ed as “to deliver other than by administering or dispensing,” id. section 30-31-2(J), and “‘deliver’ means the actual, constructive or attempted transfer from one person to another of a controlled substance,” id. section 30-31-2(G). Here, petitioner admits he hid the cocaine inside t he spare tire in Chavez’s van, transported the cocaine back to New Mexico, an d delivered the cocaine to Carrillo. As the state appellate court determined, this is sufficient evidence to support a conviction for trafficking under New Mexi co law. See State v. BorjaGuzman , 912 P.2d 277, 281 (N.M. Ct. App.)(“The various me ans of trafficking and the broad definition of deliver evinces a legis lative intent to authorize prosecution and punishment for each separate transf er of a controlled substance.”), cert. denied , 911 P.2d 883 (N.M. 1996). Equally unavailing is petitioner’s argument that he could not have
trafficked cocaine because the cocaine did not belo ng to him. Ownership of the
controlled substance is irrelevant. See State v. Hernandez , 720 P.2d 303, 311 (N.M. Ct. App.)(holding that lack of ownership of c ontrolled substance cannot be used to show defendant could not be guilty of traff icking), cert. denied , 718 P.2d 1349 (N.M. 1986). Next, petitioner claims the evidence supporting his conviction for conspiracy was insufficient. Petitioner argues Chavez knew nothing about the drug transaction and therefore, petitioner could no t have conspired with Chavez to
traffic cocaine. He further asserts that even if C havez “did suspect something happening,” if there was no specific agreement betw een them, “there was no-6-

conspiracy.” Appellant’s Br. at 17. In rejecting these arguments, the New Mexico Court of Appeals stated petitioner did not object to Carrillo’s testimony that petitioner told him Chavez would be with him in El Paso, and that Chavez ordin arily helped him with this kind of transaction. R. Vol. I, doc. 9, ex. M at 7 . Carrillo further testified that
Chavez himself told him the El Paso source was reli able. Id. Moreover, it was not disputed that the van used to transport the coc aine belonged to Chavez, and he was involved in hiding the cocaine and transporting it to New Mexico. Id.
Federal habeas review of state court determinations is “‘sharply limited’
and a court ‘faced with a record of historical fact s that supports conflicting inferences must presume--even if it does not affirm atively appear in the record--that the trier of fact resolved any such co nflicts in favor of the prosecution and must defer to that resolution.’” M esser v. Roberts , 74 F.3d 1009, 1013 (10th Cir. 1996)(quoting Wright v. West , 505 U.S. 277, 296-97 (1992)). “Explicit and implicit findings by state trial and appellate courts ‘shall be presumed to be correct,’ 28 U.S.C. § 2254(d), unles s one of the seven factors listed in section 2254(d) are present, or the feder al court concluded that the state court findings are not fairly supported by the reco rd.” Case v. Mondragon , 887 F.2d 1388, 1392 (10th Cir. 1989)(quoting Rushen v. Spain , 464 U.S. 114, 120 (1983)), cert. denied , 494 U.S. 1035 (1990). “The presumption applies t o basic, primary, or historical facts and the inferences that can properly be drawn regarding them.” Id. at 1393. Petitioner has not shown that his state convictions were obtained in2 Although petitioner appears to invoke two of the § 2254(d) exceptions to

the presumption of correctness--the state court lac ked subject matter jurisdiction to prosecute the crimes with which he was charged, § 2254(d)(4), and he “was otherwise denied due process of law in the State co urt proceeding,” § 2254(d)(7), --because we ultimately determine these claims are without merit, they do not afford an avenue for challenge to the presumption o f correctness afforded the state court’s determinations. We note that the AEDPA, enacted on April 24, 1996, limited and narrowed the exceptions to the presumption of correctness in28 U.S.C. § 2254(d). Because we have determined that petitioner could not be aff orded relief under any of the previous exceptions, he obviously could not be affo rded relief under the new, stricter version, and therefore we need not decide here whether the amended version of § 2254(d) should be applied retroactivel y. -7- violation of federal constitutional law. 2See Jackson , 443 U.S. at 323. Following our review of the state court record, we determine that the state appellate court’s
determination that there was sufficient evidence to sustain petitioner’s conviction for conspiracy to traffic cocaine under New Mexico law, is entitled to a presumption of correctness. See id. (“[a] judgment by a state appellate court rejecting a challenge to evidentiary sufficiency is . . . entitled to deference by the federal courts”).

Subject Matter Jurisdiction : Next, petitioner contends the New Mexico state court did not have subject matter jurisdiction to prosecute him for the crimes with which he was charged. Petitioner asserts the actual transfer took place i n Texas at the time Carrillo purchased the cocaine and any further exchange was “immaterial” to the charge of trafficking cocaine by distribution. Appellant’s B r. at 21-22. He further asserts-8-

there was no evidence indicating any agreement to traffic in drugs took place in
New Mexico. Id. at 22. As the state appellate court found, there was uncontroverted evidence that petitioner and Chavez hid the cocaine in the spare tire in Chavez’s van, transported the cocaine to New Mexico, and delivere d it to Carrillo. As the state court of appeals noted, “[t]o the extent that Defen dant Ontiveros argues that the crime of trafficking cocaine should be limited to b ig drug dealers and not small drug couriers, . . . such considerations are for th e legislature, not this Court.” R. Vol. I, doc. 9, ex. M at 6. We agree. As to petitioner’s challenge to New Mexico’s jurisd iction over the conspiracy charge, we have previously determined th e state appellate court’s findings that there was sufficient evidence to indi cate petitioner and Chavez entered into a plan in New Mexico to travel to El P aso to obtain a drug connection for Carrillo are presumed correct. Howe ver, even if for purposes of this analysis we were to assume the conspiracy did not take root until they reached Texas, it continued until the pair returnedto New Mexico and turned the
cocaine over to Carrillo. See State v. Villalobos , 905 P.2d 732, 735 (N.M. Ct. App. 1995)(New Mexico supports concept that a consp iracy may continue for an extended time period across jurisdictional lines), cert. quashed as improvidently granted , 916 P.2d 1343 (N.M.1996). Therefore, it is clearthat sufficient evidence supported both of petitioner’s convictions, and NewMexico had subject matter jurisdiction over the criminal proceedings.3 We note that in our record on appeal, we were provi ded with an original

and a duplicate of tape seven of the trial proceedi ngs. -9- Incomplete Record and Prosecutorial Misconduct : Petitioner asserts his ability to appeal his convic tion was hampered by an inadequate trial record. He claims that he “was de nied access to the unaltered tape-recordings of his trial for purposes of prepar ing this habeas corpus petition.” Appellant’s Br. at 25. He further asserts that a c ourt order providing petitioner was to be provided with another copy of “tapes seve n and eight of the trial,” was never obeyed. 3 Id. at 26. In a footnote, petitioner alleges “several tapes co ntaining information material to [petitioner’s] defense were altered, er ased, or otherwise inaudible.”
Id. at 26 n.12. The state responds these are serious allegations without evidence, offer of proof, or even identification of the refer enced tapes. Appellee’s Br. at 12. The state points out the inconsistency betweenpetitioner’s allegations to this court on appeal and his pro se petition, in which h e stated these few remarks by the prosecutor during closing arguments were the on ly “missing” portions of the taped transcript. We agree that petitioner has cit ed us to no other tapes which were allegedly altered, erased, or otherwise tamper ed with. Our review in this matter, therefore, was unaided by these allegations which misrepresent the
evidence. Specifically, petitioner claims the prosecutor made improper remarks during closing arguments, linking petitioner with “ ‘Pablo Acosta’--a renowned drug dealer and stated Petitioner was part of a ‘drug ring’ out of Juarez, Mexico.”-10-

Appellant’s Br. at 27. Petitioner claims these rem arks, not audible on the tape of closing arguments, are followed by a period of sile nce and a bench conference during which his counsel was objecting and moving f or a mistrial. Id. We review allegations of prosecutorial misconduct d e novo. Fero v. Kerby , 39 F.3d 1462, 1473 (10th Cir. 1994). “In determini ng whether a petitioner is entitled to federal habeas relief for prosecutorial misconduct, it must be
determined whether there was a violation of the cri minal defendant’s federal constitutional rights which so infected the trial w ith unfairness as to make the resulting conviction a denial of due process.” Id. We have listened to Tape 7, 8-25-92, allegedly cont aining the prosecutor’s remarks. We agree there is a period of silence on the tape. In support of his contention that the alleged improper remarks of the prosecutor were erased, petitioner states that “[w]hen the recorder comes b ack on, it is during a bench conference, and defense counsel is objecting to pro secutorial misconduct and making a motion for a mistrial.” Appellant’s Br. at 27. This only is accurate as far as it goes, and again misrepresents the evidenc e. What is on the tape when it again becomes audible is a bench conference in whic h defense counsel is moving for a mistrial based on comments by the prosecutor calling petitioner’s credibility into question. Defense counsel states, “What he ju st stated there, what Mr. Key just stated there was no different than standing th ere and calling my client a liar. That’s prosecutorial misconduct and on that basis I move for a mistrial.” Tape 7, 8-25-92 at tape counter 286-89. This part of the exchange, although whispered, is audible and4 The state notes in its brief that Carrillo testifie d at petitioner’s sentencing

hearing that he had intelligence information linkin g petitioner with “Pablo Acosta, a known kingpin out of Presidio, Texas. Pr esidio, on the Mexican side of Presidio.” Appellees’ Br. at 15.
-11- understandable. It is, however, incompatible with petitioner’s allegations of improper remarks regarding a relationship between p etitioner and a Mexican drug connection. Therefore, in light of the lack of any evidence that the alleged remarks were ever made in the prosecutor’s closing statement, 4our review of the tape and the state court proceedings reveal no erro r of constitutional magnitude which rendered petitioner’s trial fundamentally unf air. See Darden v. Wainwright , 477 U.S. 168, 181 (1986)(holding defendant must s how the prosecutor’s improper conduct rendered the trial fu ndamentally unfair and a denial of due process). The judgment of the district court is AFFIRMED.

Entered for the Court
Mary Beck Briscoe Circuit Judge