Romero v. Tansy, s. 94-2009

• Decision Date: 31 January 1995
• Docket Number: Nos. 94-2009,94-2011,s. 94-2009
• Citation: 46 F.3d 1024
• Parties: Michael R. ROMERO, Petitioner-Appellant, v. Robert J. TANSY and Attorney General of the State of New Mexico, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1024

46 F.3d 1024

Michael R. ROMERO, Petitioner-Appellant, v. Robert J. TANSY and Attorney General of the State of New Mexico, Respondents-Appellees.

Nos. 94-2009, 94-2011.

United States Court of Appeals, Tenth Circuit Jan. 31, 1995.

Stephen P. McCue, Supervisory Asst., Federal Public Defender, Albuquerque, NM, for appellant.

Patricia A. Gandert, Asst. Atty. Gen. (Tom Udall, Atty. Gen. of New Mexico, Santa Fe, NM, with her on the brief), for appellees.

Before TACHA, McKAY, and BALDOCK, Circuit Judges.

TACHA, Circuit Judge.

Appellant Michael R. Romero was convicted in New Mexico state court of several offenses, including robbery, armed robbery with a firearm enhancement, and arson, and was sentenced to a total of twenty-five years of imprisonment and two years of parole. He filed three petitions for writs of habeas corpus in federal district court pursuant to 28 U.S.C. Sec. 2254, claiming various constitutional infirmities in his state court proceedings. He now appeals the district court's denial of his petitions. We exercise jurisdiction pursuant to 28 U.S.C. Sec. 1291 and affirm in part and remand in part.

I. Background

This case's relevant history began on March 27, 1985, with the armed robbery of a hardware store in Chimayo, New Mexico. According to Ms. Genevieve Montoya, who was working at the store when the robbery occurred, a young Hispanic male entered the store and robbed her at gunpoint. Shortly thereafter, Ms. Montoya described the perpetrator to a New Mexico state police officer. Based on this information, the police prepared a photo array to present to Ms. Montoya. The day after the robbery, Ms. Montoya selected appellant's photograph from the array as the perpetrator.

On May 14, 1985, an indictment charging appellant with armed robbery with a firearm enhancement was filed in the First Judicial District Court for the State of New Mexico. Appellant pled not guilty and proceeded to trial on August 27, 1985 (case number 85-29). At the time of his trial for armed robbery, two other criminal actions were pending against appellant in the First Judicial District Court. Those actions included charges of robbery, another armed robbery, larceny, receiving stolen property, aggravated battery, and aggravated assault.

Mr. Jim D. James represented appellant at trial in case number 85-29. After a one-day trial, appellant was convicted of armed robbery with firearm enhancement. Roughly two weeks later, two more indictments were filed against appellant in the First Judicial District Court charging him with arson, armed robbery with firearm enhancement, and aggravated assault.

On October 7, 1985, before sentencing in case number 85-29, appellant entered a plea and disposition agreement with the State of New Mexico. Under the terms of the agreement, appellant pled guilty to a single offense in each of the four untried criminal actions pending against him. In exchange, the state guaranteed appellant that his total sentence of imprisonment for his five convictions--his conviction by a jury in case number 85-29 plus his four convictions for the offenses to which he was pleading guilty--would not exceed twenty-five years. Appellant would first be sentenced in case number 85-29, and that sentence would be set independently of the plea agreement. Appellant then would be sentenced for the other four offenses, with his total time of imprisonment (including his sentence for case number 85-29) not exceeding twenty-five years.

On November 19, 1985, appellant was sentenced to ten years' imprisonment and two years' parole in case number 85-29. He filed no direct appeal in that case. On December 6, 1985, appellant was sentenced for the four remaining offenses. In accordance with his plea agreement, his combined sentence for all five convictions was twenty-five years plus a parole term of two years.

Four years later, in December of 1989, appellant filed a pro se petition for a writ of habeas corpus in New Mexico state district court. His petition asserted that he had been denied effective assistance of counsel at his trial in case number 85-29, that Ms. Montoya's in-court identification of appellant was unconstitutionally suggestive and unreliable, and that his guilty pleas in the four other cases were involuntary. On January 12, 1990, the New Mexico court summarily dismissed the petition. Two weeks later, appellant filed a petition for a writ of certiorari with the New Mexico Supreme Court. That petition was denied on February 6, 1990.

On July 6, 1990, appellant filed three separate habeas petitions in federal district court pursuant to 28 U.S.C. Sec. 2254. The district court consolidated the petitions and referred the matter to a magistrate judge for proposed findings and recommended disposition. The consolidated petition raised the same claims that appellant asserted in his state habeas petition: He received ineffective assistance of counsel at trial, Ms. Montoya's in-court identification was unconstitutional, and his guilty pleas were involuntary. Appellant also claimed that the evidence was insufficient to sustain his conviction in 85-29.

The magistrate judge held an evidentiary hearing concerning appellant's contentions on November 9, 1992. On November 30, 1993, the magistrate judge filed his proposed findings and recommended disposition, which recommended that appellant's petitions be denied. After reviewing the magistrate judge's conclusions de novo, the district court adopted the proposed findings and recommended disposition and dismissed appellant's action with prejudice. Mr. Romero now appeals.

II. Procedural Bars

Before addressing the merits of appellant's petitions, we must consider whether his claims are procedurally barred. As the Supreme Court recently stated in Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991), where

a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Id. at 750, 111 S.Ct. at 2565. In this case, appellant did not directly appeal any of the five convictions that he now challenges. Moreover, the New Mexico state court that summarily dismissed appellant's state habeas petition did so without addressing the merits of his claims. Appellant therefore has procedurally defaulted on these claims, so he must demonstrate either cause and prejudice or a fundamental miscarriage of justice for a federal court to review his claims on habeas.

The district court found that, because appellant alleged that his attorney was constitutionally ineffective for failing to perfect a direct appeal, appellant had demonstrated cause for his procedural default. For purposes of this appeal, however, we need not review the district court's ruling in this regard. As we shall explain, all but one of appellant's claims fail on their merits, and appellant has demonstrated cause and prejudice for any procedural default on his one potentially successful claim. We therefore now turn to the merits of appellant's petitions.

III. Ineffective Assistance of Counsel Claim

Appellant first claims that his attorney's performance at trial in case number 85-29 was constitutionally inadequate, depriving him of his Sixth Amendment right to counsel. Specifically, appellant contends that Mr. James was ineffective because he failed to investigate the case and because he failed to perfect a direct appeal of appellant's conviction. The ultimate question of whether a defendant received ineffective assistance of counsel is an issue of law which we review de novo. Minner v. Kerby, 30 F.3d 1311, 1316 (10th Cir.1994). A district court's findings of historical fact in regard to an ineffective assistance claim, however, are entitled to deference. Denton v. Ricketts, 791 F.2d 824, 827 (10th Cir.1986). Moreover, we review a district court's factual findings based on live testimony presented at the evidentiary hearing only for clear error. Archuleta v. Kerby, 864 F.2d 709, 711 n. 2 (10th Cir.), cert. denied, 490 U.S. 1084, 109 S.Ct. 2108, 104 L.Ed.2d 669 (1989).

To prevail on an ineffective assistance of counsel claim, a defendant must meet the two-prong test set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, the defendant must show that his attorney "made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. To do so, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. Second, the defendant must demonstrate that his counsel's deficiencies were prejudicial to his defense--"that counsel's errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable." Id. at 687, 104 S.Ct. at 2064. Furthermore, our "scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. at 2065. As a reviewing court, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955)).

Appellant's first ground for claiming ineffective assistance alleges that Mr. James failed to investigate appellant's possible alibi defense. Appellant contends that he is innocent of the offense, that he had alibi witnesses, and that an adequate investigation would have uncovered this information. At the...