Young v. Attorney General of NM, 10th Cir. (2013)

FILED
United States Court of Appeals

Tenth Circuit
August 12, 2013

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court
ROBERT TRUJILLO YOUNG,

Petitioner - Appellant,
No. 13-2067
(D.C. No. 1:11-CV-01139-MV-LAM)
(D. New Mexico)
v.
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO; JAMES
LOPEZ, Warden,
Respondents - Appellees.
ORDER DENYING CERTIFICATE OF APPEALABILITY
Before HARTZ, OBRIEN, and GORSUCH, Circuit Judges.
Applicant Robert Trujillo Young was convicted in New Mexico state court
of eight crimes, including one count of first-degree felony murder and two counts
of conspiracy to commit murder, and was sentenced to imprisonment for life plus
24 years. He applied for federal habeas relief under 28 U.S.C. 2254 in the
United States District Court for the District of New Mexico, and that court denied
his application. He now seeks a certificate of appealability (COA) to allow him
to challenge that denial. See 28 U.S.C. 2253(c)(1)(A) (requiring COA to appeal
denial of 2254 relief). We deny the application for COA and dismiss the
appeal.
Applicants offenses were committed while he was incarcerated at the

Guadalupe County Correctional Facility in Santa Rosa, New Mexico, in August
1999. Applicant, as a leader of the Los Carnales prison gang, ordered an attack
on Adrian Mares, a fellow inmate who survived the attack, and personally led
gang members in an attack on correctional officer Ralph Garcia, inflicting
multiple stab wounds causing death. He was indicted in May 2000 for firstdegree murder and other crimes related to these attacks. The jury returned guilty
verdicts and the New Mexico Supreme Court affirmed. Applicant sought
postconviction relief in state district court, but his petition was denied and the
state supreme court denied review. In December 2011 Applicant filed the present
2254 application.
Before turning to Applicants request for a COA, we address a preliminary
matter. On April 23, 2013, we issued an order to show cause why he had not
waived appellate review of all his claims by failing to object to the magistrate
judges Proposed Findings and Recommended Disposition. See Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991) ([W]e have adopted a firm waiver
rule when a party fails to object to the findings and recommendations of the
magistrate.). He responds that he did not receive notice of the magistrate
judges actions until after the time to object had expired. We need not decide
whether this response is adequate because, as we proceed to explain, none of his
claims is entitled to a COA anyway.
-2-
A COA will issue only if the applicant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. 2253(c)(2). This standard
requires a demonstration that . . . includes showing that reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to
deserve encouragement to proceed further. Slack v. McDaniel, 529 U.S. 473,
484 (2000) (internal quotation marks omitted). In other words, the applicant must
show that the district courts resolution of the constitutional claim was either
debatable or wrong. Id.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
provides that when a claim has been adjudicated on the merits in a state court, a
federal court can grant habeas relief only if the applicant establishes that the
state-court decision was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States. 28 U.S.C. 2254(d)(1). As we have explained:
Under the contrary to clause, we grant relief only if the state court
arrives at a conclusion opposite to that reached by the Supreme Court
on a question of law or if the state court decides a case differently
than the Court has on a set of materially indistinguishable facts.
Gipson v. Jordan, 376 F.3d 1193, 1196 (10th Cir. 2004) (brackets and internal
quotation marks omitted). Relief is provided under the unreasonable
application clause only if the state court identifies the correct governing legal
-3-
principle from the Supreme Courts decisions but unreasonably applies that
principle to the facts of the prisoners case. Id. (brackets and internal quotation
marks omitted). Thus, a federal court may not issue a habeas writ simply because
it concludes in its independent judgment that the relevant state-court decision
applied clearly established federal law erroneously or incorrectly. See id. Rather,
that application must have been unreasonable. Therefore, for those of Applicants
claims that the New Mexico courts adjudicated on the merits, AEDPAs
deferential treatment of state court decisions must be incorporated into our
consideration of [his] request for [a] COA. Dockins v. Hines, 374 F.3d 935, 938
(10th Cir. 2004).
Applicant raises in this court the same six issues he raised in his 2254
application. (For convenience, we combine what he numbers as his fourth, fifth,
and seventh issues.)
First, Applicant claims that his Sixth Amendment speedy-trial right was
violated by the 102-month delay between his indictment and trial. The New
Mexico Supreme Court adjudicated this claim on the merits, applying the fourpart test of Barker v. Wingo, 407 U.S. 514 (1972). See id. at 530 (considering
[l]ength of delay, the reason for the delay, the defendants assertion of his right,
and prejudice to the defendant). It held that the length of delay weighed in
Applicants favor, but that most of the delay was attributable to Applicants
interlocutory appeals, that Applicant failed to assert his right to a speedy trial
-4-
until about eight years after his indictment, and that Applicant had not shown
prejudice. We agree with the district court that the state courts balancing of the
Barker factors was consistent with clearly established Supreme Court precedent.
Applicants second claim is that trial evidence of his gang affiliation was so
improperly prejudicial as to render his trial fundamentally unfair. The New
Mexico Supreme Court analyzed this claim under state evidentiary rules and
rejected it. [E]videntiary objections . . . are cognizable on habeas only if the
alleged error was so grossly prejudicial that it fatally infected the trial and denied
the fundamental fairness that is the essence of due process. Revilla v. Gibson,
283 F.3d 1203, 1212 (10th Cir. 2002) (brackets and internal quotation marks
omitted). The district court was clearly correct in deciding that the evidence did
not create fundamental unfairness.
Applicants third claim is that the trial court refused to give his proffered
jury instruction on causation and gave ambiguous and confusing instructions on
first-degree murder. Unless the constitution mandates a jury instruction be
given, a habeas petitioner must show that, in the context of the entire trial, the
error in the instruction was so fundamentally unfair as to deny the petitioner due
process. Tiger v. Workman, 445 F.3d 1265, 1267 (10th Cir. 2006). The New
Mexico Supreme Court held that Applicants requested causation instruction was
unnecessary and that the challenged instructions could not have prejudiced
Applicant. These conclusions were not contrary to or an unreasonable application
-5-
of any Supreme Court precedent, and the district courts conclusion that
Applicant failed to show that his trial was rendered fundamentally unfair by these
alleged instructional errors is not subject to reasonable debate.
Next, Applicant claims that his trial counsel was constitutionally
ineffective under the Sixth Amendment. He organizes his complaints about his
attorneys performance in three categories: (1) his attorney failed to call expert
witnesses at trial to rebut the testimony of state experts; (2) he failed to call
Applicant as a witness in his own defense; and (3) he effectively conceded
Applicants guilt by (a) failing to call certain unnamed inmate witnesses, (b)
failing to obtain fingerprint and DNA testing on some of the physical evidence
introduced at trial, (c) failing to lodge certain unspecified objections, and (d)
failing to cross-examine government witnesses on unspecified points. He also
points to his attorneys statements in pretrial proceedings that inadequate
compensation was imperiling his ability to conduct a vigorous defense. To
establish ineffective assistance, Applicant must satisfy the two-prong test of
Strickland v. Washington, 466 U.S. 668 (1984), requiring a showing of both (1)
deficient performance by counsel falling below an objective standard of
reasonableness, id. at 688, and (2) prejudice to Applicants case from the
deficient performance sufficient to raise a reasonable probability that, but for
counsels unprofessional errors, the result of the proceeding would have been
different. Id. at 694.
-6-
Applicant has failed to demonstrate prejudice. Although he argues that

counsel was obliged to call experts and other witnesses, he does not show what
they would have said that would have been helpful to his defense. See Boyle v.
McKune, 544 F.3d 1132, 1138 (10th Cir. 2008) (prejudice not shown from
counsels failure to call witnesses where applicant could not show what helpful
testimony the witnesses would have provided). As to his complaint about
counsels failure to call him as a witness in his own defense, Applicant states
merely that counsel failed to ask him if he was willing to defend himself on the
stand, Aplt. Br. at 13, and does not allege that he was unaware of or was
prevented from exercising his right to testify in his own defense. Cf. Cannon v.
Mullin, 383 F.3d 1152, 1171 (10th Cir. 2004) (thwarting of clients right to testify
is a dereliction of duty [that] would satisfy the first prong of Strickland). And
he fails to explain how it would have been to his advantage to testify. See id.
([P]rejudice . . . is established if there is a reasonable probability that
defendants testimony would have raised in a jurors mind a reasonable doubt
concerning his guilt.). Similarly, we must reject his remaining ineffectiveassistance claims because he has not shown how the results of scientific tests
would have aided his defense, what would have been accomplished by additional
objections or cross-examination, or what helpful evidence would have been
obtained if counsel had more money or resources. Reasonable jurists would not
debate the district courts disposition of these claims.
-7-
Applicants sixth claim is that he was denied effective assistance of counsel

because his counsel had a conflict of interest. He alleges that correctional
authorities informed the trial judge and prosecutor in 2008 that they had
confiscated a shank that they believed Applicant intended to use to attack his
lawyer, and that the trial judge informed Applicants lawyer. But he cites no
evidence substantiating that the 2008 incident occurred. And in any event,
Applicant points to nothing in the record showing that his defense was negatively
affected by this incident. See Mickens v. Taylor, 535 U.S. 162, 174 (2002).
Reasonable jurists would not debate the district courts rejection of this
ineffective-assistance claim.
Applicants final claim is that his appellate counsel was ineffective for
failing to argue the same alleged deficiencies in his trial counsels performance
that we have just discussed. But because none of the underlying claims have
merit, Applicant clearly fails to show that his appellate lawyer was ineffective for
failing to raise them. See Smith v. Workman, 550 F.3d 1258, 126869 (10th Cir.
2008).
We note that Applicant argues that he was entitled to an evidentiary hearing
in district court to develop facts relating to all his claims. But he failed to request
an evidentiary hearing in district court, and we decline to grant him relief that he
seeks for the first time on appeal. See Davis v. Workman, 695 F.3d 1060, 1077
(10th Cir. 2012).
-8-
We DENY Applicants motion for COA and DISMISS his appeal. We

GRANT his motion to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
-9-

Young v. Attorney General of NM, 10th Cir. (2013)

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FILED

United States Court of Appeals

August 12, 2013

ROBERT TRUJILLO YOUNG,

ORDER DENYING CERTIFICATE OF APPEALABILITY

Before HARTZ, OBRIEN, and GORSUCH, Circuit Judges.

Applicants offenses were committed while he was incarcerated at the

Applicant has failed to demonstrate prejudice. Although he argues that

Applicants sixth claim is that he was denied effective assistance of counsel

We DENY Applicants motion for COA and DISMISS his appeal. We

ENTERED FOR THE COURT

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