*

 This order is not binding precedent, except under the doctrines of law of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 Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

July 9, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAUL ARTHUR LOPEZ, 

Petitioner–Appellant, No. 09-2198

v. (Case No. 1:09-CV-00218-JB-RLP)

GEORGE TAPIA, Warden; GARY K.

KING, Attorney General for the State

of New Mexico,

(D.N.M.)

Respondents–Appellees.

 

ORDER*

Before KELLY, McKAY, and LUCERO, Circuit Judges.

Petitioner, a pro se state prisoner, seeks a certificate of appealability to

appeal the district court’s denial of his § 2254 habeas petition. He claims his

constitutional rights were violated during the pre-trial proceedings when “the

State, being bound by mandatory legislation, failed to conduct a preliminary

hearing within ten (10) days of his initial appearance.” (Application for

Certificate of Appealability at 6.) He further argues his constitutional rights were

violated when he was only permitted twenty minutes to review the juror

questionnaires prior to voir dire. He also argues, for the first time on appeal, that

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 Pursuant to New Mexico law, the metropolitan court conducted a probable

cause determination at the time of Petitioner’s initial appearance and bound him

over for trial. See N.M.R.A. 7-203(A).

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certain of the jurors who tried his case were actually or potentially biased against

him.

The state court concluded on appeal that Petitioner’s due process rights

were not violated when, following an order of enlargement of time, he was

indicted eleven days after his initial appearance.1

 The court concluded that New

Mexico’s Rules of Criminal Procedure did not require the filing of an indictment

within the ten-day period applicable for a preliminary examination and, moreover,

that the trial court was permitted to enlarge this time period. Furthermore, the

court concluded any error in the initiation of the proceedings did not warrant

dismissal of the indictment because Petitioner had shown no prejudice resulting

from the allegedly improper one-day delay. See State v. Tollardo, 654 P.2d 568,

570 (N.M. 1982) (“Dismissal is not the proper remedy for a delay in holding a

preliminary examination when prejudice to the defendant has not been shown.”) 

“The right to a preliminary hearing in the State of New Mexico is one

guaranteed by the state constitution and only becomes a Federal Constitutional

guarantee by the equal protection clause of the Fourteenth Amendment because it

is a part of the due process of the state.” Silva v. Cox, 351 F.2d 61, 64 (10th Cir.

1965). Therefore, we must accept the state court’s interpretation of its laws

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unless this interpretation is “inconsistent with the fundamental principles of

liberty and justice.” Id. After reviewing the record and Petitioner’s filings on

appeal, we see no issue of fundamental unfairness in the state court’s

interpretation in this case, and we conclude that reasonable jurists would not

debate the district court’s dismissal of Petitioner’s claims relating to this issue. 

See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

With respect to the juror questionnaires, Petitioner argued below that the

trial court denied his right to a fair trial by denying his request for a continuance

after allowing him only twenty minutes to review the forty questionnaires. When

the magistrate judge recommended dismissal of this claim because Petitioner had

pointed to no evidence of juror bias, Petitioner responded: “In considering this

issue the sole question IS NOT: whether or not the jury was bias[ed]. The sole

question is whether or not twenty minutes, alone, is enough time to read forty

Juror Question[n]aires.” (R. at 223.) Although he subsequently moved to expand

the record to include the juror questionnaires, he argued they were relevant

simply to demonstrate that these forty questionnaires could not be reviewed

within twenty minutes. Based on the arguments presented before the district

court and our review of the record on appeal, we conclude that reasonable jurists

would not debate the district court’s dismissal of this claim due to Petitioner’s

failure to establish he was denied the right to a fair and impartial jury through the

trial court’s denial of a continuance.

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In his petition for a certificate of appealability, Petitioner argues for the

first time that certain of the juror questionnaires reveal actual or potential bias,

demonstrating that his rights to a fair trial were prejudiced by the insufficient

time he was given to review the questionnaires. However, “absent extraordinary

circumstances, we will not consider arguments raised for the first time on appeal. 

This is true whether an appellant is attempting to raise a ‘bald-faced new issue’ or

‘a new theory on appeal that falls under the same general category as an argument

presented at trial.’” McDonald v. Kinder-Morgan, Inc., 287 F.3d 992, 999 (10th

Cir. 2002) (internal citation omitted) (quoting Lyons v. Jefferson Bank & Trust,

994 F.2d 716, 722 (10th Cir. 1993)). We decline to grant a certificate of

appealability for Petitioner to raise a theory of bias that he affirmatively

disavowed before the district court.

We DENY Petitioner’s motion to expand the record on appeal. Petitioner’s

motion for an order permitting him to file handwritten pleadings is DENIED as

moot—pro se litigants are not prohibited from filing handwritten pleadings in this

court, and such an order is therefore unnecessary. In accordance with our

standard procedures, we have reviewed all of Petitioner’s handwritten filings in

this case. After reviewing these filings and the record on appeal, however, we

conclude that reasonable jurists would not debate the dismissal of Petitioner’s

habeas petition. Therefore, for substantially the same reasons given by the

magistrate judge and the district court, we DENY Petitioner’s request for a

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certificate of appealability and DISMISS the appeal.

Entered for the Court

Monroe G. McKay

Circuit Judge

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