* This order and judgment is not binding precedent, except under the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

** Honorable G. Thomas Van Bebber, Chief Judge, United States District

Court for the District of Kansas, sitting by designation. 

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, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. Therefore, appellant’s
1 On April 24, 1996, while petitioner’s appeal was pending, the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), Pub.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. Sept. 30, 1996). 

Also during the pendency of this appeal, the Prison Litigation 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 pauperis was granted by the district

court prior to PLRA’s enactment date and was not revoked, we determine it

unnecessary to decide whether the amendments to § 1915 apply here.

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request for oral argument is denied, and the case is 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. § 2254. Petitioner filed his notice

of appeal on February 13, 1996, and the district court granted a certificate of

probable cause to appeal on February 27, 1996.1

On appeal, petitioner claims (1) his convictions were not supported by

sufficient evidence; (2) the trial court lacked subject matter jurisdiction over his

criminal prosecution; and (3) his right to appeal was violated by the provision of

an inadequate record which hampered his presentation of his claim of

prosecutorial misconduct. “We review the district court’s legal conclusions de

novo and its factual findings for clear error.” Thomas v. Kerby, 44 F.3d 884, 886

(10th Cir. 1995). We note petitioner does not appeal two additional issues that
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were also rejected by the district court: (1) whether petitioner had a valid

entrapment defense; and (2) whether the trial court erred when it refused to strike

three jurors for cause. As these issues are not appealed, 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 October 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 cocaine 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 months 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 on both counts and sentenced to

nine years’ imprisonment on the first count and three 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 New Mexico Supreme Court was
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summarily denied. Petitioner filed a state petition 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 element of the crimes for

which he was convicted. In considering the sufficiency of the evidence

supporting a state conviction, a federal court must consider 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 to prove he transferred

cocaine to another, an element of trafficking cocaine by distribution. See section

30-31-20(A)(2). Petitioner asserts his participation in Carrillo’s purchase of the

cocaine was by way of introduction to the source only and did not constitute

“‘distribution, sale, barter, or giving away any controlled 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 logically impossible for him to

sell, distribute, trade or do anything else with the cocaine.” Id. at 15.

Under New Mexico law, “‘traffic’” means “distribution, sale, barter or

giving away of any controlled substance.” N.M. Stat. Ann. § 30-31-20(A)(2). 
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The distribution of a controlled substance is defined 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 the spare tire in Chavez’s

van, transported the cocaine back to New Mexico, and delivered the cocaine to

Carrillo. As the state appellate court determined, this is sufficient evidence to

support a conviction for trafficking under New Mexico law. See State v. BorjaGuzman, 912 P.2d 277, 281 (N.M. Ct. App.)(“The various means of trafficking

and the broad definition of deliver evinces a legislative intent to authorize

prosecution and punishment for each separate transfer 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 belong 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 controlled substance cannot be

used to show defendant could not be guilty of trafficking), 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 not have conspired with Chavez to

traffic cocaine. He further asserts that even if Chavez “did suspect something

happening,” if there was no specific agreement between them, “there was no
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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 ordinarily 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 reliable. Id. Moreover, it was

not disputed that the van used to transport the cocaine 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 facts that supports conflicting

inferences must presume--even if it does not affirmatively appear in the

record--that the trier of fact resolved any such conflicts in favor of the

prosecution and must defer to that resolution.’” Messer 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), unless one of the seven factors

listed in section 2254(d) are present, or the federal court concluded that the state

court findings are not fairly supported by the record.” 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 to 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 in
2 Although petitioner appears to invoke two of the § 2254(d) exceptions to

the presumption of correctness--the state court lacked 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 court proceeding,” § 2254(d)(7),

--because we ultimately determine these claims are without merit, they do not

afford an avenue for challenge to the presumption of 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 in 28 U.S.C. § 2254(d). Because

we have determined that petitioner could not be afforded relief under any of the

previous exceptions, he obviously could not be afforded relief under the new,

stricter version, and therefore we need not decide here whether the amended

version of § 2254(d) should be applied retroactively.

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violation of federal constitutional law.2 See 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 in Texas at the time Carrillo

purchased the cocaine and any further exchange was “immaterial” to the charge of

trafficking cocaine by distribution. Appellant’s Br. at 21-22. He further asserts
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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 delivered it to Carrillo. As the state

court of appeals noted, “[t]o the extent that Defendant Ontiveros argues that the

crime of trafficking cocaine should be limited to big drug dealers and not small

drug couriers, . . . such considerations are for the legislature, not this Court.” R.

Vol. I, doc. 9, ex. M at 6. We agree.

As to petitioner’s challenge to New Mexico’s jurisdiction over the

conspiracy charge, we have previously determined the state appellate court’s

findings that there was sufficient evidence to indicate petitioner and Chavez

entered into a plan in New Mexico to travel to El Paso to obtain a drug

connection for Carrillo are presumed correct. However, 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 returned to 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 conspiracy 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 clear that sufficient evidence

supported both of petitioner’s convictions, and New Mexico had subject matter

jurisdiction over the criminal proceedings.
3 We note that in our record on appeal, we were provided with an original

and a duplicate of tape seven of the trial proceedings.

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Incomplete Record and Prosecutorial Misconduct:

Petitioner asserts his ability to appeal his conviction was hampered by an

inadequate trial record. He claims that he “was denied access to the unaltered

tape-recordings of his trial for purposes of preparing this habeas corpus petition.” 

Appellant’s Br. at 25. He further asserts that a court order providing petitioner

was to be provided with another copy of “tapes seven and eight of the trial,” was

never obeyed.3

 Id. at 26.

In a footnote, petitioner alleges “several tapes containing information

material to [petitioner’s] defense were altered, erased, 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 referenced tapes. Appellee’s Br. at

12. The state points out the inconsistency between petitioner’s allegations to this

court on appeal and his pro se petition, in which he stated these few remarks by

the prosecutor during closing arguments were the only “missing” portions of the

taped transcript. We agree that petitioner has cited us to no other tapes which

were allegedly altered, erased, or otherwise tampered 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.” 
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Appellant’s Br. at 27. Petitioner claims these remarks, not audible on the tape of

closing arguments, are followed by a period of silence and a bench conference

during which his counsel was objecting and moving for a mistrial. Id.

We review allegations of prosecutorial misconduct de novo. Fero v. Kerby,

39 F.3d 1462, 1473 (10th Cir. 1994). “In determining whether a petitioner is

entitled to federal habeas relief for prosecutorial misconduct, it must be

determined whether there was a violation of the criminal defendant’s federal

constitutional rights which so infected the trial with unfairness as to make the

resulting conviction a denial of due process.” Id. 

We have listened to Tape 7, 8-25-92, allegedly containing 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 back on, it is during a bench

conference, and defense counsel is objecting to prosecutorial 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 evidence. What is on the tape when it

again becomes audible is a bench conference in which defense counsel is moving

for a mistrial based on comments by the prosecutor calling petitioner’s credibility

into question. Defense counsel states, “What he just stated there, what Mr. Key

just stated there was no different than standing there 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 and
4 The state notes in its brief that Carrillo testified at petitioner’s sentencing

hearing that he had intelligence information linking petitioner with “Pablo

Acosta, a known kingpin out of Presidio, Texas. Presidio, on the Mexican side of

Presidio.” Appellees’ Br. at 15.

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understandable. It is, however, incompatible with petitioner’s allegations of

improper remarks regarding a relationship between petitioner 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,4 our review of the

tape and the state court proceedings reveal no error of constitutional magnitude

which rendered petitioner’s trial fundamentally unfair. See Darden v.

Wainwright, 477 U.S. 168, 181 (1986)(holding defendant must show the

prosecutor’s improper conduct rendered the trial fundamentally unfair and a

denial of due process).

The judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe 

Circuit Judge