71 F.3d 363 (10th Cir. 1995), 94-4222, Medina v. Barnes

Docket Nº:94-4222, 95-4006.
Citation:71 F.3d 363
Party Name:Jerry Joe MEDINA, Petitioner-Appellant, v. M. Eldon BARNES, Warden, Respondent-Appellee.
Case Date:December 05, 1995
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 363

71 F.3d 363 (10th Cir. 1995)

Jerry Joe MEDINA, Petitioner-Appellant,

v.

M. Eldon BARNES, Warden, Respondent-Appellee.

Nos. 94-4222, 95-4006.

United States Court of Appeals, Tenth Circuit

December 5, 1995

Page 364

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Page 365

Jerry Joe Medina, pro se, for Petitioner-Appellant.

Angela F. Micklos, Assistant Attorney General, and Jan Graham, Attorney General, State of Utah, Salt Lake City, Utah, for Respondent-Appellee.

Before TACHA, LOGAN, and BRISCOE, Circuit Judges.

LOGAN, Circuit Judge.

I

Petitioner Jerry Joe Medina appeals the second dismissal of his habeas corpus petition, see 28 U.S.C. Sec. 2254, following our remand to the district court after the original dismissal. Medina v. Barnes, 982 F.2d 529 (1992). The remand order focused on petitioner's allegations that two key prosecution

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witnesses gave perjured testimony, thereby undermining the fundamental fairness of petitioner's trial and second degree murder conviction. The district court dismissed again after determining petitioner failed to make the requisite showing that would entitle him to an evidentiary hearing in federal court. The issue on appeal is whether petitioner made the necessary showing to obtain an evidentiary hearing in which he might establish cause and prejudice for failing to develop in state court the underlying facts to support his allegations of perjured testimony. We review de novo the denial of habeas relief. Sinclair v. Henman, 986 F.2d 407, 408 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 129, --- L.Ed.2d ---- (1993). 1

Petitioner was convicted in the shooting death of George Givens, a/k/a Gregory Newman. Petitioner first met Givens on the night of the murder. The shooting occurred at a party attended by Givens and an acquaintance, Rickey Myers, which petitioner also attended. Myers was a key government witness who provided the only eyewitness testimony identifying petitioner as the killer. The other principal government witness was Eli Archuleta, who testified that petitioner made an incriminating statement that he had killed Givens with a .32 caliber pistol. Petitioner asserts that Myers and Archuleta gave perjured testimony, and that petitioner is entitled to an evidentiary hearing to establish disputed facts concerning the use of this testimony.

To be entitled to an evidentiary hearing in a federal habeas action, the petitioner must first make allegations which, if proved, would entitle him to relief. Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.Ct. 1715, 118 L.Ed.2d 318 (1992). If the petitioner does that the court must then determine whether petitioner is entitled to an evidentiary hearing to resolve any disputed facts underlying his claims. Id. at 309, 83 S.Ct. at 755.

Our prior order remanded this case for consideration of petitioner's allegations that his conviction was unlawfully premised upon Myers' and Archuleta's allegedly perjured testimony. Those allegations were the basis for petitioner's claims that he received ineffective attorney representation--from his trial lawyer for failing to discover the evidence establishing the falsity of this testimony, and from his appellate lawyer for failing to assert this evidence in his direct appeal. Further, petitioner claims that the prosecutor knowingly used false testimony and withheld evidence from petitioner that would have contradicted Myers' and Archuleta's testimony. Now, having the benefit of the state court record, 2 we conclude that most of petitioner's allegations are meritless. 3 But one, that petitioner's

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claim of trial counsel's ineffectiveness in failing to conduct an investigation that would have uncovered evidence undermining Myers' testimony, states a claim entitling petitioner to an evidentiary hearing.

II

A

Petitioner's allegations that the prosecutor knowingly used perjured testimony must fail because petitioner has not pointed to any evidence that the prosecutor was aware the testimony of his two key witnesses might be false. For the same reason, petitioner's claim that the prosecutor withheld exculpatory evidence tending to contradict or undermine Myers' and Archuleta's testimony lacks merit. Petitioner states no facts that would support his assertion that the prosecution was in possession of such evidence. See Hatch v. State of Oklahoma, 58 F.3d 1447, 1469-70 (10th Cir.1995). Because these claims were meritless, any allegation that appellate counsel was ineffective for failing to raise them on direct appeal must also fail. See Banks v. Reynolds, 54 F.3d 1508, 1515 (10th Cir.1995). In addition, petitioner's appellate counsel did file a motion with the Utah Supreme Court submitting the newly discovered evidence contradicting Myers' and Archuleta's testimony. That court denied the motion on the basis that it involved matters outside the trial court record. Thus, appellate counsel was not constitutionally ineffective on the basis petitioner alleges.

B

Petitioner contends that his trial counsel was ineffective for failing to conduct an adequate investigation that would have revealed evidence impeaching Eli Archuleta's testimony. Archuleta gave somewhat confusing testimony that he had sold petitioner a .38 caliber weapon and that, after the shooting, petitioner approached Archuleta in The Annex bar and assured Archuleta that he had shot the victim with another weapon, a .32 caliber gun. 4 Petitioner argues that an adequate investigation by counsel would have revealed that Archuleta was testifying pursuant to an agreement with the prosecution not to prosecute him or revoke his parole. Petitioner also asserts that before trial Archuleta had been involved in an ongoing argument with Leonard Fernandez, petitioner's cousin and a key defense witness, and that Archuleta had tried to kill Fernandez and had threatened Fernandez' family.

These issues, however, were raised at trial. Also, defense counsel presented rebuttal testimony concerning the feud between Archuleta and Fernandez. The only additional evidence petitioner asserts counsel should have obtained was the testimony of a part-time disc jockey who worked at The Annex who, according to his affidavit, could have testified that he knew both petitioner and Archuleta. The disc jockey purportedly would have testified that he had never seen petitioner in The Annex, nor had he ever seen petitioner socializing with Archuleta. I R. doc. 3, addendum at 16. This additional evidence is at most cumulative, and of limited probative value; it cannot provide the basis for habeas relief. See Romero v. Tansy, 46 F.3d 1024, 1030 (10th Cir.) (considering potential value to defense of evidence counsel might have discovered in assessing whether counsel was ineffective for failing to conduct investigation), cert. denied, --- U.S. ----, 115 S.Ct. 2591, 132 L.Ed.2d 839 (1995). Petitioner's ineffectiveness claim based on trial counsel's inadequately investigating Archuleta's testimony must fail.

C

Petitioner's allegation that...

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